Lawdable

ACEDS Returns With A Splash

Barry Willms — Tue, 10 Apr 2012 09:58:48 -0500

Well, the ACEDS 2012 (Association of Certified E-Discovery Specialists®) conference is over: another practical e-discovery conference at a great location (the Westin in Hollywood, Fla.) is in the books. It seemed to be much larger than its inaugural year and a good mixture of lawyers and other e-discovery practitioners.

It was especially good to return this year having passed the CEDS examination last fall, which tested many areas of the e-discovery process, from technology to project management to budgeting, etc.

Topics at this year’s conference included dealing with social media, best practices in project management, succeeding in catastrophic cases, e-discovery malpractice, and numerous others. The format was again fairly tightly controlled, with each speaker giving eight to nine minutes on a topic followed by questions and answers, with the moderators trying to keep everyone on task.

The speakers were knowledgeable and usually quite practical in their application of points, although too much time was spent on bios and introductory remarks, which took away precious minutes from the speakers (some of whom were slighted on time). This is always the most difficult component of a conference and for the most part it was pulled off successfully, however. I liked that so many different speakers were used, and while several spoke on more than one panel there were no domineering performances that left you wondering why they were on a panel.

One main takeaway on the programming is that I’m still struck (and somewhat amazed) that the industry has been slow to embrace that e-discovery projects require project management. While this is generally an accepted notion on the technology side of the process, it seems not everyone has accepted (or is just slowly adopting) that everything from budget forecasting to people management to documented repeatable processes also needs project management. Speaking from personal experience and watching it happen on dozens of projects the last few years here at Counsel On Call, that’s where you get your efficiencies, your productivity and in the end your success.

It is no longer acceptable, in my opinion, to take a project, throw people at it, and invoice the client when you’re done. Instead, you need to be able to know where you are at every step along the way and diligently benchmark, track and report it – and your client needs access to that same information as well. Budget awareness, project progression awareness, complications that might impact the budget or timeline, collaboration with inside/outside counsel and technology partners, etc., are each integral factors in a successful e-discovery project and for future matters.

In the end, clients hate the ‘gotcha’ moment. Project management and transparency of process are meant to reduce and hopefully eliminate those moments. At the very least, the steps along the way will identify those events that could quickly spiral out of control if not picked up on as early as possible.

One other note: This year there seemed to be more technology vendors than before. While it is important to have great sponsors for such events, I’m sure hoping it doesn’t become overwhelming with booths like so many other conferences. These vendors were each given a time to briefly speak and provide several tips but were not supposed to make it an infomercial. Many succeeded while others failed. Perhaps the ACEDS committee should have this segment pre-planned much like they do each of the other panels. The concept is good but the execution left something to be desired.

Overall it was another solid event for ACEDS, and I’m looking forward to more in the future. They are worth checking out if you aren’t familiar with the organization.

And then of course there were the fabulous accommodations. The beach is always a great place to learn about e-discovery. Just saying.

A Proactive eDiscovery Approach Would Make Hannibal Smith Proud

Barry Willms — Fri, 30 Sep 2011 15:39:21 -0500

Who doesn’t love an A-Team reference? Let’s get to the backstory. …

On September 26, Ken Koch (Managing Director, KPMG, LLP) and I had the privilege to speak to a roomful of healthcare and compliance lawyers on the subject “eDiscovery: A Tactical Approach to Managing Risk and Reducing Cost” as part of the Fraud and Compliance Forum, co-sponsored by the American Health Lawyers Association and the Health Care Compliance Association.

The subject matter was straightforward: why is planning for e-discovery so important? We started with examples of how e-discovery costs are directly impacted by handling it well, doing it just okay or doing it poorly. The cost can be many multiples more if handled poorly versus handling it with planning and forethought. Volume and types of data are huge drivers in the overall discussion of costs for e-discovery; other factors include record retention plans, discovery workflows, record collection initiatives (whether overly broad or more targeted) and search and culling methodologies or technologies utilized.

To the readers of this blog, none of this is necessarily new information. But one point in particular – that the review component of the EDRM model is often referred to as “the most expensive piece in the process” – is where I would like to diverge. During our discussion, I argued that the steps leading up to the review actually have more impact on overall cost of the review project: how a company deals with documents from a retention perspective; how it prepares and plans for the project; how the company targets its collection; and how the technology and methodology of culling and searching the data are bigger components of the overall cost and will directly impact the volume, time frame and budget of the review itself. Stay with me for the A-Team analogy. …

Being proactive on all of these steps is key. Waiting for litigation to hit before deciding on how to send a legal hold or to start training internal IT resources on the preservation (and perhaps collection) of data will only serve to increase overall project costs. Getting IT, Legal, Compliance, and Retention folks in the room to deliberately plan an e-discovery response before litigation hits will save a lot of money. Topics could include data mapping and choosing technology and review partners, or simply getting the IT and Legal departments to list out the steps each will take upon the sending of a legal hold notice.

When the review itself begins, the use of a core team of attorneys who are dedicated to the client over long periods of time and on multiple projects will enhance efficiency and contain costs on all subsequent review projects. This dedicated team will help provide guidance on each subsequent project for culling techniques, familiarity with your company acronyms, privilege terms, in-house and outside counsel names and the ability to track metrics will, working together, provide the most cost-effective review project.

Being proactive takes time and money on the front end, but that’s the short-term view. These costs will be recouped tenfold when you’re hit with your next e-discovery project and put the plan into action, so it’s time and money well spent. And when successfully implemented, maybe you’ll have the inkling to utter that famous Hannibal Smith line (George Peppard version, of course) from the A-Team: “I love it when a plan comes together.” Cigar optional.

Maybe we should explore who represents the Face, Murdoch and B.A. Baracus characters. ...

In-House Departments Won't 'Double Dip'

Dennis McKinnie — Thu, 11 Aug 2011 16:24:19 -0500

While the credit and debt crises and the political bickering in Washington have sent markets onto yet another roller coaster ride (and disgusted most of us) -- and on the heels of an interesting article in the Wall Street Journal on in-house hiring practices -- it’s worth revisiting the impact the last recession had on the legal marketplace – all of three years ago.

At that time (2008), law firms were just truly beginning to feel the burn of hiring masses of high-paid associates – the going rate in large markets was $160,000 for a first-year, but much of the work first-years were expected to handle (see: e-discovery) was already going away. When the economy’s bubble burst, the effect was quick and uncompromising: corporations instituted immediate hiring freezes, put off litigation and other large and expensive projects as long as possible, and there were dramatic reductions in legal spend. That was the whammy that sent giant and mid-size firms alike into a state of layoffs, mergers and dissolutions, as well as hourly rate reductions… which, of course, was soon followed by masses of news releases about alternative fee arrangements and value pricing for clients. It was what I have heard some refer to as the “we get it, you need to cut costs, trust us we can do it” age.

The reason for much of this was the movement by corporate legal departments to flesh out internal processes while operating on a very lean budget, which resulted in the identification of resources that could produce good work at a reasonable cost. In the fall of 2008, I spent many hours with our corporate clients working on alternatives to laying off in-house staff, and those sessions created a number of innovations in how some of the work gets done. Many of those innovations have “grown up” and will help those legal departments weather whatever storm may come their way in 2011 and beyond.

The results of this maturation process have been outstanding in many instances – better communications, workflows and use of resources, a better work product, close partnerships with service providers, a more strategic use of outside counsel, and, ultimately, millions of dollars in savings. The reason: they (and we) gained a better understanding of the value of their legal work and how to appropriately allocate it, and business decisions -- not just legal decisions -- became a vital criteria for structuring work. Many corporations have now permanently instilled these processes and philosophies into their everyday practice and are well prepared to face a difficult economic environment if it comes again. While it might not all be caviar and champagne, they aren’t going to have as bumpy of a road when they had to lay down the law with their legal service providers in 2008. This is good news for everyone.

If anything, a double dip recession will only solidify that legal work is handled differently now than it was in 2008. It will prompt some corporations who might not have been pushed over the edge three years ago to further explore and develop new ways of handling their matters from top to bottom -- and there are plenty of existing frameworks to draw inspriation from. The values are a lot more defined. But most relevant to this post, legal work is a collaborative process and there are partners throughout the lifecycle of all legal services that can be effective, whether it be a piece of litigation, an acquisition or everyday contracts negotiation… and it’s clear that it's no longer a world dependent on one partner and there is no lone, single way of delivering legal services.

Social Media Panel: Early Involvement, Where We're Going, What to Do

Barry Willms — Thu, 26 May 2011 09:46:14 -0500

Social media is here. You know it from your personal life. You know its usage from political uprisings, natural disasters, other world events and the constant call to “weigh in” from news outlets or broadcast programs. And everyone wants to be your “Friend.”

It’s certainly growing in the legal community, too. In 2008, the ABA conducted a study that found that only 15% of lawyers used social media. That number went up to 56% in 2010 and no doubt continues to increase.

If you ever want to see an in-house attorney’s face lose its color, just bring up the subject of a company’s employees having free reign on open social networks anytime, anywhere. But that’s where we are, so now it’s time to discuss its impact in the business and litigation environments to see how corporations need to prepare for its proper usage in the ordinary course of business and prepare to deal with it in the inevitable litigation that will involve it.

That’s why this year’s first Discovery Symposium 3.0 panel discussed the impact of social media. The key factor is that everyone’s doing it, so there’s lots of it – whether on LinkedIn, Facebook, Twitter, foursquare, YouTube, photo-sharing sites, blogs or the dozens of other outlets most attorneys don’t even know exist. Businesses need to become savvy in the areas of usage policies and preserving and collecting this ESI as it becomes necessary for litigation, and to understand its impact on the overall costs of litigation. The E-Discovery 2.0 Blog just posted about these issues in particular and click on for more thoughts from the DS3.0 panel...

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Social media is defined by its interactive nature. It is fast becoming the main means by which individuals communicate with each other and as individuals become accustomed to such interactive communication it naturally creates an impact on business. So how should business respond?

Our first panelist was John Campbell, senior counsel at FedEx Corporation, who spoke about social media policies. Some of the policy considerations or primary concerns a business should ask in creating a policy include protecting your brand and avoiding litigation. One of the main discussion points: What resources will each business allocate to auditing and enforcement of the policy?

One best practice in enforcing a social media policy is to explain how an employee needs to protect themselves, the brand and relationships with customers. Be professional in all that you write. Some companies have posted their social media policies online, which serve as a good basis for what companies need to consider when create these policies. There are several great resources online, including a fresh post from Michelle Sherman of Sheppard Mullin that has some good Do’s and Don’ts and other policy thoughts.

Our other panelist was Vincent Miraglia, chief counsel for employment litigation and e-discovery at International Paper (IP), who focused on the practical responses to the impact of social media on business. Vinnie discussed the limited case law on various social media topics and then dealt with some of the new difficulties in accessing and collecting various social media if called upon to do so for discovery purposes. He also spoke about what IP has done to get ahead of the curve – including creating SM policies and educating employees about them – and their regular internal conversations about these issues.

We all seem to be using social media in some fashion whether for personal or business reasons or more likely, both. We all will need to become familiar with its impact on the business from creating a policy, training employees on it, enforcing it and then dealing with the litigation hold, preservation, collection, searching and review components in the not too distant future.

We need to address these issues in much the same fashion that we needed to learn how to deal with e-mail and other ESI in the last decade. It’s the way we’re heading, and if you don’t currently use social media in some fashion, you will (unless you’re one of the three folks who still send typed written letters via snail mail, in which case you’re probably not reading this anyway).

"Bad E-Discovery Costs $60 Million Per Year."

Lawdable — Wed, 25 May 2011 09:36:48 -0500

That was the comment that got the most gasps from attendees of Discovery Symposium 3.0, our annual event for general counsels, directors of litigation and e-discovery managers.

The select group of attendees – approximately 50 senior attorneys from 40 corporate legal departments – come together to discuss the challenges they’re facing involving e-discovery, solutions we’ve collaboratively executed, and share stories about technology tools in the marketplace and different approaches with outside counsel, among other topics. The full agenda can be seen here. It’s a highly engaged and interactive group that has proven to consistently identify numerous best practices in the discovery realm and truly cares about seeing one another succeed.

Now, back to the byline… one of our attendees, from a Fortune 100 company with an extremely knowledgeable legal department that has taken the majority of its e-discovery work and processes in-house, shared with the group that the company conducted an in-depth study on the true costs of e-discovery. The report included issues such as outside counsel and vendor costs, retention and collection policies, internal resources and technology, the possibility of sanctions, and many other factors. The attendee’s full quote is this:

“For a $25 billion company, handling e-discovery very well costs approximately $3 million annually. Average e-discovery costs $10 million. Bad e-discovery costs $60 million per year.”

While results may vary for corporations, those are eye-opening numbers and we're glad we're helping them get on the right side of those numbers. It led the discussion about how a department can’t just let outside counsel handle all things e-discovery anymore (even though most are past that) and it’s now so much more – there has to be process at every stage, there has to be real management and monitoring, there has to be a real dedication to quality control, and IT and Legal must be on the same page. All help build a “great” process. If a company isn’t focused on these things, one attendee shared, it’s “borderline negligence. At best you’re costing your company millions of dollars a year.”

The attendee went a step further, saying that "this data shows that Legal can be a revenue generator, so to speak. We can stand there and make a very strong argument as to why we need to spend money on certain software, or why we want to partner with certain companies... or even not work with certain law firms or vendors."

We’d be interested to hear your thoughts on the numbers above. The legal industry certainly isn’t averse to hyperbole, but this report holds up against much of the client data and results we track and report. For instance, it’s not uncommon to save clients in the eight figures over the course of a year compared to previously utilized models that didn’t focus on eliminating data, experienced project management or incorporating client-dedicated teams of Counsel On Call attorneys.

We’ll also follow up with thoughts and quotes from some on the different DS3.0 sessions.

Who Are the E-Discovery Attorneys?

Shawn DeHaven — Mon, 09 May 2011 10:52:27 -0500

In previous entries, I wrote about enjoying the discovery work that I do. Recently I have given more thought to the question of why it is that I enjoy it; after all, so many attorneys view the work as transitional or laborious. For me, the autonomy is great. The subject matter changes from project to project. I have opportunities to meet and work with different attorneys, clients, litigation support staff, and vendors, all of which I consider an added bonus. These things would also be true if I were practicing in a more “traditional” manner as well, however. So my assessment is that it must be something deeper that compels me to choose this career path over any other.

It was only recently that, when introduced by Andy Branham of the Memphis office as somewhat of a “computer nerd who happens to be an attorney,” that I had an epiphany. He was right.

There is a subset within the legal profession comprised of attorneys who consider themselves specialist discovery attorneys. The attorneys I’m referring to consciously chose to work in this rapidly expanding area of the law. But where did they come from? Perhaps some attorneys have inadvertently found this career as a result of being the go-to person for technology-related questions in a firm. Discovery attorneys possess a genuine interest in the work and a desire to use their experiences to contribute in the discovery process. These attorneys appreciate the complexity of e-discovery, the intricacy of the collection, culling and review processes, and ultimately the end product, the production. Here at Counsel On Call, our attorneys also often have the opportunity to handle additional discovery-related work, such as privilege log, research and writing and witness prep, among other responsibilities.

Perhaps these attorneys can visualize the process more easily than their colleagues. Perhaps they consider how technology can provide them alternatives and understand and embrace it, not just the end product that the technology may provide. Discovery attorneys are problem-solvers with a twist, using the technology to their advantage. They may work for large corporations, law firm technology departments, or independent e-discovery organizations that fill the niche role of discovery counsel. They work in conjunction and partner with in-house and outside counsel completing what could be referred to as the three-legged stool model of client representation.

E-discovery is still in its infancy and for me, as well as others drawn to this work, it is a grand opportunity, one that allows us to continually improve upon our skill set and enhances our knowledge base. I am thankful to have experienced mentors at Counsel On Call who appreciate this desire and continually assist in the furtherance of my growth as a discovery attorney by providing advice, insight and other resources. They recognize the value in providing growth opportunities that will not only benefit the individual and the team but also provide added value to our clients.

There’s also no question technology helps my colleagues and me do our jobs better and faster, thereby amplifying that value we offer our clients. That’s a win-win scenario as I see it, and I think attorneys who are into learning about new tools are perfect for e-discovery work. I look forward to diving into the practical uses of this technology in subsequent posts.

Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call on Lawdable. To learn more about Shawn, please see his bio or the profile piece in Counsel On Call’s newsletter from last summer.

Discovery Symposium 3.0 Program Announced

Lawdable — Wed, 27 Apr 2011 10:55:24 -0500

Our annual Discovery Symposium (now in its third year) for corporate legal departments is a real labor of love for several of us here at Counsel On Call. A lot of time and consideration -- much of it with our in-house clients -- goes into the creation of the sessions, identifying the proper experts to speak and attorneys who will get the most out of the program, as well as creating an environment in which in-house attorneys are comfortable sharing their stories of trial, success and failure.

We're very excited about this year's program and our group of attendees. Some of the highlights:

Leading off with a panel on the challenges presented by Social Media today and tomorrow. Our knowledgeable friends from FedEx and International Paper, along with Barry Willms, will lead the discussion.
Search Validation, Intelligent Coding and Smartly Reducing Data Sets, a panel that has been in development for some time and a topic we've addressed in previous events. But this year there's certainly a heightened interest/debate about this topic due to the New York Times article on the subject that went viral, so we're looking forward to getting deep into this subject.
Breakout sessions led by Cox Communications, Fidelity Investments and Southwest Airlines, as well as a session led by some of our Team Leaders, who will get into the finer points of creating effective, cost-saving discovery processes.
Ten-minute 'snapshot' presentations from six of the leading in-house attorneys who oversee discovery processes at their respective companies. Each will offer at least one 'lesson learned.'
Our annual discussions on relationships with outside counsel, pricing structures, budgeting and technology tools. We get a lot of 'stories from the field' during these sessions and there's always ample audience participation.

The format/size we've created -- small panels, 40 corporate legal departments, 65-75 attendees -- truly seems unique in the dialogue it generates and best practices it fleshes out. It should be another great event and we're excited to host everyone in Nashville again.

PAR Conference Demonstrates Progress

Jane Allen — Wed, 06 Apr 2011 09:56:16 -0500

Last week, I had the privilege of attending and speaking at The Project for Attorney Retention’s (PAR) annual conference in Washington, D.C. There were attorneys from various practice areas from across the country in attendance and the event was a great success.

As I listened to managing partners and general counsel discuss the importance of having attorneys working on a flexible basis, including reduced hours, I had to take a moment to reflect over the last 11 years (April marks Counsel On Call’s 11-year anniversary). In our formative years during hundreds, if not thousands, of conversations, the questions I would invariably get, with all sincerity, were "Who would do this? Who does not want to be a partner?" I will always remember receiving one e-mail stating that I was ”crazy” and that I would fail as there is “only one way to practice law.”

I also remember meeting amazing attorneys who were made to feel they had no value because they opted out of the traditional path. Those attorneys kept me going.

At the PAR conference, it was clear that very talented attorneys now choose to practice in a “non-traditional” way, and the focus was on how the profession should embrace and encourage this choice. That’s certainly an initiative I’ve been and will continue to get behind. PAR has done an excellent job of bringing these issues to make real change happen and keep the conversations alive. Realizing that our “little” company isn’t so little anymore – and that our attorneys worked in 33 states for dozens of law firms and Fortune 100 and publicly traded companies in 2010 – serves as proof that more and more people are realizing that there is indeed more than one way to practice law. Today, so many talented attorneys choose to practice in what used to be thought of as a non-traditional manner.

What a difference a decade makes… and that difference is changing the profession for the better.

No Better Place Than Florida For A Little E-Discovery

Barry Willms — Wed, 30 Mar 2011 10:13:26 -0500

Well, the ACEDS 2011 (Association of Certified E-Discovery Specialists®) inaugural annual conference is over. Beyond our own Discovery Symposium (I’m admittedly biased), for my money it was one of the best, most practical e-discovery conferences I have ever attended. And the venue: wow! Hollywood, Fl., in March sure beats New York or Washington in winter (no offense. I’m just saying….)

The schedule included a wide range of topics: social media and cloud computing, the inner workings of how a computer saves information, data mapping, and ethical considerations in e-discovery. Unlike other conferences I’ve attended, this one kept me awake for the most part with a fast-paced program and diverse speaker list.

Sessions were tightly controlled and methodical. The panels were three or four individuals with slightly different topics or emphases and each speaker was given eight or nine minutes to talk. This was followed by both orchestrated (pre-planned) questions in addition to audience participation.

The speakers themselves were a good mix of attorneys, litigation support and IT professionals each coming from and speaking to their unique perspective. The speakers acted like they wanted to be there (which you cannot always take for granted.) They were not solely focused on case law or an academic approach to e-discovery but each session was very practical, current and relevant. It’s also worth mentioning that the moderators did an excellent job of not allowing any one speaker or audience member to dominate the time.

One area for improvement for next year is to spend less time in the introductions of each of the speakers. Some sessions took 20 minutes or more to get going. We have the bios in the materials; no need for reading me their résumé. I also would have liked to have had a better sense of who was in the audience (attorneys, litigation support and IT professionals.)

While I certainly learned many things, my biggest takeaway from the event was confirmation that our team here at Counsel On Call is doing the right things, looking at the right issues and is, in fact, ahead of the curve on many of these topics. The world of e-discovery changes daily, it seems, and we are constantly making efforts to ensure that we don’t lose sight of the bigger picture while stuck in the weeds. Going to events such as ACEDS is very helpful to gain that perspective and hear from people working on many of the same issues as we are.

I hope to be at the Second Annual ACEDS conference in March 2012. Check out ACEDS on-line and on Twitter or at the conference hastag. I also hope to continue the dialogue with some of my new Twitter friends now that we’re each back at our desks (follow me here).

Speaking of being back at home, leaving the conference was difficult. Ft. Lauderdale was 78 degrees compared to Nashville’s brisk 40 degrees. Welcome back to reality.

E-Discovery Review Platforms: Choices Abound

Barry Willms — Tue, 01 Mar 2011 10:36:38 -0500

Choosing a technology vendor is a critical piece in making a review project successful. There are literally hundreds to choose from as was recently seen again at Legal Tech 2011. Even with lots of consolidation in the industry there are still many national and regional players to consider.

While there are many factors that go into choosing a review platform, do not forget the impact of having the basics covered. Every review software platform should be able to do the following:

Host in a stable environment that doesn’t go down very often
Ease of ‘look and feel’ to allow for quick coding
Organized folder structure
Searchability among folders, documents and attachments
Reporting on progress by reviewer, custodian, overall and every relevant field of coded information
Handling of the volume of reviewers logged on
Having sufficient server capacity to process the data at the pace needed

Also don’t overlook the basic package that is needed to make an efficient review for the type of document that you will be collecting. Scanned paper might not work in every platform, for example. Likewise, certain color files do not work on some platforms. And just the basic set-up can directly impact speed.

It’s always a wonder to me how many developers don’t seem to try their platform on actual end users of the product. I know of numerous platforms that could be improved simply by changing the placement of certain buttons, modifying the layout of the foldering structure, or if they would just consolidate and ease the number of clicks to finish coding a record. These steps would most certainly make the review faster and more efficient.

But assuming that you have the basics covered, it comes down to three additional areas: cost, relationship and service.

Cost
The cost is an obvious go or no go component of the decision-making process. Most vendors are flexible and will give you options based upon volume of project, volume of overall client, or certain discounts that come with a first-time use.

Relationship
You have to work with someone, so you might as well like them as you’ll be relying on them for the success of the project. This goes beyond seeing a good demo or having lunch. Can you rely on their responsiveness after the sale? Are they trustworthy in what they say? Sometimes a good old gut check is helpful in discerning whom to put your faith in.

Service
It doesn’t do any good to have a great relationship and low cost if the end service is horrible. You shouldn’t rely on a vendor demonstration for making your final decision; most vendors have very good presenters and trainers (although I’ve seen some really bad demos, too). In the end though, the software must actually be able to do what is promised. It must deliver and the people who answer the phone – even when trouble arises – must deliver as well.

The advice is this: get the review team’s leadership involved at some level in the selection of the review platform. Our project managers are familiar with dozens of vendors and their service capabilities and can provide the type of insight that can make the review maximize quality control, troubleshooting, efficiency and ultimately save you significant dollars.

Efficiency v. Effectiveness v. Innovation: Why Draw Lines?

Dennis McKinnie — Mon, 14 Feb 2011 13:09:49 -0500

There’s a quiet debate among legal pundits that’s often played out on social media sites such as Twitter, one that probably not too many people pay attention to. It’s almost an ancillary argument to the “traditional” way of billing for legal services, but it a debate that I believe cuts to the heart of value and innovation in our profession.

On the one side is the “effectiveness” argument, and one of the most outspoken voices on the topic is Ron Baker of California-based VeraSage Institute. Mr. Baker is a proponent of the death of the billable hour, and frames many of his opinions regarding legal value with the “effectiveness trumps efficiency” argument. If you’re on Twitter, I would encourage you to follow Mr. Baker.

Another proponent of the demise of the billable hour is Pat Lamb of Chicago-based Valorem Law Group – you might recognize Pat from recent 'New Normal' posts on the subject on the ABA Journal website. In a blog post over the weekend, Pat addressed the notion that effectiveness comes at the sacrifice of efficiency, and that the pursuit of efficiency stifles innovation. Pat says it all very well, but I’d like to tack on a couple of thoughts.

When undertaken properly, the search for efficiency can undoubtedly lead to innovation. We see it firsthand when we look at the processes of our clients; how they manage their legal work, who touches the documents, if there are better ways to allocate resources, where money can be saved and work can be handled better, as well as many other factors. We put a new plan into action and, as the process evolves, we look at how our attorneys are working, if the quality (or “effectiveness”) is meeting or exceeding expectations, and how we can do even better work in more efficient ways. As long as the goal is better effectiveness, the search for efficiency can certainly lead to innovation.

A huge target for this is the multiple-level review of documents in the e-discovery process. A common practice is for a team of attorneys to handle a first-level review of the documents and then for outside counsel to re-review a certain percentage of these documents. This process is almost always ripe for efficiency, especially considering the cost of the law firm’s review of the documents. But is it effective for the lawyers trying the case to only see a select portion of the documents?

That’s sometimes a contentious subject, but with a thorough quality control process, adept use of technology platforms and experienced attorneys conducting the initial review (especially those with deep experience litigating cases both small and large), it’s become clear to us that outside counsel often needs to review decreasingly fewer documents. The key is to build an effective QC process alongside outside counsel, part of which includes having senior people on the review team who have a solid understanding of the case and who work closely with outside counsel; they understand what outside counsel is looking for to win the case and can build a process to feed them the right documents. In practice, with each ensuing matter these issues become both more efficient and more effective, but it takes a certain level of innovation to design and implement the process.

So yes, I strongly believe the search for efficiency can lead to better effectiveness AND innovation. In fact, I think efforts in any of the three of these areas can benefit the others.

"Degrees of Freedom," Empowerment Make for Successful Discovery Teams

Shawn DeHaven — Wed, 02 Feb 2011 11:05:48 -0500

My thanks goes out to Sarah Randag of the ABA Journal for her January 28, 2011, Question of the Week (“Can Document Review Work Help You Grow As A Lawyer?”), in which she quoted from my previous blog entry. After reading the posted comments, it seems that there are several takeaway points to consider should one decide to work in the discovery arena:

Jobs are what one makes of them.
Who one works for makes a difference.
Degrees of freedom are paramount.

I readily concede the point that discovery and document review work is not for all attorneys. It is true that all document review projects and organizations focusing on providing these services are not equal. I speculate bad experiences with some organizations also contribute to the negative stereotypes of the work. Bad experiences, rather than good, tend to stay with us longer (so psychology suggests). In the end, there are two camps: those who have had good experiences and those who have not. Perhaps the distinction between the two camps, promoters and detractors, is perspective on experiences.

I too have worked on a “traditional” doc review project and understand the comments of the detractors. One thing that makes the Counsel On Call experience unique versus other organizations is that our company is run by attorneys, from the owners to the client liaisons to the project managers. These attorneys have spent years either as in-house counsels or at large law firms. They understand the process, what is needed, the objectives, and the goals – including how to reduce costs without sacrificing the work product. It’s also important to note that Counsel On Call works with dozens of corporate legal departments as well as with law firms; many doc review companies primarily work with law firms and simply provide a "staffing" solution.

My most recent project provided me with a direct line to in-house counsel. Leading the discovery team, I directly reported to the lead in-house attorney placed in charge of the review on which we worked. In this regard, we functioned as an off-site legal department under the supervision and direction of the client. It was not uncommon to provide examples, discuss why a particular record might or might not be considered privileged, and seek other guidance from the in-house attorney. These conversations were both welcomed and encouraged. I was provided with knowledge of the process from receipt of discovery request to actual production. Being involved in, and gaining knowledge of, the big picture changes how the work is viewed and done. We were always treated as a critical and integral part of the legal team.

Maybe that is the point as it relates to degrees of freedom. Because I have a background in Industrial and Organizational Psychology with an emphasis on the “O” side, a portion of my first training was in creating, developing, and maintaining efficient and effective teams. I use “degrees of freedom” in this context as a catchall for empowerment, and research suggests teams work better when they are empowered. Ingredients of empowerment include knowledge, a sense of belonging and the ability to make decisions. When a team is empowered, it develops a sense of ownership of both the work and the final product. The team is, collectively and collaboratively, a separate and distinct entity; distinguishable from the sum total of its parts, the individual team members. To that end, I would hypothesize the “traditional” doc review team which possesses no degrees of freedom, and consequently no empowerment related to its work would be far less effective and efficient than the empowered team of which I am a part.

As I said in my earlier entry, I enjoy my work and learn on each project. I’ve broadened my skill set and gained a better understanding of the discovery process. I’ve also learned more about what’s important to my clients and how I can help the team achieve goals. When it’s all put together, I know I’m a better and more valuable lawyer today than I was before I started working on these discovery matters.

Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call on Lawdable. To learn more about Shawn, please see his bio or the profile piece in Counsel On Call’s newsletter from last summer.

Harried, But With Purpose

Barry Willms — Thu, 27 Jan 2011 12:29:50 -0500

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Harried. That’s the usual descriptive word for the week prior to the start of a discovery project (especially when it's been a week like this one: several new projects beginning while preparing to head to LegalTech NY next week). Assembling and familiarizing team members; developing and fine-tuning QC protocols; hour-by-hour updates from technology partners; constant discussion with outside counsel; making sure the client is getting concise and relevant information. Effectively relaying all the information to the people who need it. Logistics, logistics, logistics.

These challenges, as you might have noticed, are solved through collaboration, communication and coordination. It is the groundwork needed to achieve a successful and budget-conscious review project. The maestro of this orchestra is the project manager. It is his or her responsibility to have a plan in place, implement it, tweak it as necessary, manage the issues and move the process forward.

Much of a project manager’s time and expertise is best put to use in transitioning the project from a harried environment to one of streamlined communication and coordination. This includes accurate budgets and every member of the team knowing his or her role in the process. “A” comes before “B,” etc. Initially, ramp-up might be full of changes and the desired decision rates targets might not be met; the good PM will have a plan that accounts for the unexpected, avoid overreaction, correct what needs correction and get everyone and everything running at optimal levels.

Some may call it organized madness, but every review truly is one large learning process. It just has to be built into the process – knowing when and where the team could experience difficulties and being able to adjust on the fly. It is as critical as assembling the right team leadership and team members. It includes training on the substance of the matter and on any new software or technology that might be put into use during the review and preparing the materials that are needed for an efficient start and completion of the project. Again, each of these measures takes thoughtful collaboration and communication in order to maximize results down the road.

In the end, it all comes together to increase efficiency and effectiveness, save the client money and get the job done right and on time. Just know that the duck that appeared calm on the surface likely had its feet paddling like mad underneath to make it happen.

E-Discovery & Document Review From a Different Perspective

Lawdable — Wed, 05 Jan 2011 10:37:30 -0500

Note: Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call here. This is his first entry. To learn more about Shawn, please see a profile piece in Counsel On Call’s newsletter from last summer.

I received an email from a colleague recently with a link to an ABA article titled, “Paralegal Job Can Make Career Sense, But Document Review Is Dubious, Experts Advise.” Nothing like a great headline to get your spirits up.

The article suggests document review work should be avoided by new law grads so much so that, in some instances and if given the choice, it is better for said grad to take a paralegal job in lieu of a document review job. I would have acquiesced to the point since, on its face, the article appeared to be written with the new grad as the target audience… but for the fact that one linked blog attacked the industry as a whole.

The blog suggests that document review work is “totally meaningless” and describes it as “walmart for lawyers.” Continuing, the author states no actual lawyering is involved, that all one learns are some new legal concepts, results in the amassing of no new skills, and suggests “…it's valuable work for the client that we never meet and who doesn't give a ___ who we are…” I can only infer from the author that if one is not a litigator, they should not be called a lawyer.

I would like to thank all of the authors, the scores of bloggers and others who proclaim the professionally detrimental characteristics of document review work. I appreciate the categorization of it being dead-end and worthless work. The more negativity and misinformation there is out there means less people will be drawn to the work… and that keeps those of us who do the work employed.

All kidding aside, there is a dearth of commentary addressing the positives of discovery work. There are certainly scores of contract attorneys who don’t do such work, as my colleagues at Counsel On Call can certainly attest. But I’m sticking to what I'm currently working on, which is discovery work, and rare is the article or blog written by an attorney proclaiming how great the work is; maybe my team and I are different and actually see the work in this light.

I am an attorney. I have represented clients in court. I have provided legal guidance to companies. I do document review and discovery work. And I am happy.

How is this possible, the cynic might ask? Consider this: an attorney working on a discovery project has the unique opportunity to learn something new -- the use of technology in litigation. I posit that if all one learns from working on a document review project is to press ‘Shift 5’ all day, then one was probably not open to the work in the first place. That is not a bad thing. It’s okay, the work is not for you. As I see it, there are two different types of people, those who embrace the task they have been assigned, take pride in the work they do, and attempt to glean some big picture mastery… and then there is everyone else. It's kind of like that Jimmy Buffett song, “It’s My Job.” It's how you look at, it's about perspective.

Back to technology…. On each discovery project I’ve worked on I have been moved from regular reviewer to the quality control team because I identified ways in which the process could be improved through the use of technology. The full use of these tools allows the process to be a puzzle, a game of sorts and a challenge – every day is a little bit different than the last. It is challenging to learn about new technologies and shortcuts and how they can assist the process. To me, this is fun; and now that I have found my niche at Counsel On Call as a team leader, I enjoy going to work every day which, I have heard, is a rare thing for an attorney. But more importantly, I’m providing expertise and value to my client, and that is a big part of why I became a lawyer in the first place.

Holiday Fun

Lawdable — Fri, 17 Dec 2010 12:43:31 -0500

Here's a reason why a lot of us love working at Counsel On Call: Chris Cotton and Tiffany Fox, both members of our discovery team, organized a tacky holiday sweater and holiday treats competition. Amidst a very busy time of year with several large projects, it's great to hear so much laughter, smell the aromas of homemade dishes and see the comradie within the teams.

The competition is tough, too -- there are some very, umm, qualified candidates to win the top 'tacky sweater' prize. If you'd like to see more photos, we're updating our Facebook page regularly throughout the day.

Happy holidays!

What Would Hal 9000 Do (WWH9D) for E-Discovery?

Barry Willms — Fri, 03 Dec 2010 11:52:24 -0500

“Greetings, attorney 61432. Your security access has been confirmed. What type of documents would you like me to search and code for you today?”

Imagine e-discovery being that easy. Simply logging on and telling a computer to handle your process for you. Sounds like something out of “2001: A Space Odyssey.”

When I began my legal career, the dominant discovery work involved reviewing paper documents in cardboard boxes and inputting information onto coding sheets or onto computer ‘boxes’ with blinking orange or green lights and no internal drives. Not exactly the golden age of artificial intelligence, eh? That being said, very few could foresee the impact of the computer itself in the legal world, but with the advent of e-mail an entire industry was born to deal with the “E” part of e-discovery in particular. The jobs that many lawyers hold today did not even exist in that form just a decade ago.

Fast forward to today where the talk of the town is predictive coding using the ones and zeros to do the work that a human lawyer currently does (maybe "The Matrix" would've been a better analogy here). Predictive coding has received an increasing amount of discussion among the various forward-thinking lawyers involved in e-discovery (see a good example here). This trend and its impact will no doubt increase over time.

Predictive coding takes a number of forms but basically it involves someone with case knowledge starting to review documents, and then the computer learns from the documents marked responsive, non-responsive, privileged, etc., and applies that knowledge to categorize all the documents in the entire data set that has been collected. (Of course, the value that most discovery attorneys bring to a case is more than just tagging a document as responsive or privileged. They also analyze the documents and determine how they fit into the overall litigation. They can find problematic, hot or helpful documents too that might not be possible to find strictly from a predictive coding perspective.)

The question that remains is whether predictive coding will be good enough to rely on for production or will we still need to review the documents at a more “Quality Control level” before production. The upsides are definitely there if it can work. Speed, cost savings, accuracy, etc., could all be improved. As always, much depends on the accuracy of the initial information inputted into the process, but overall it bodes well for saving clients money.

And as cost-saving devices are created to meet the current technology challenges, the technology challenges themselves are also changing and increasing. The next challenges will likely involve social media sites, text messaging, audio and video files, and dynamic databases, each of which are only starting to rear their ugly heads in the discovery world.

Add all of this discussion to our current economic times and we once again have the concern about the impact on jobs and future careers. Will they still need me if a computer does all the review? The question is not unique to the legal world and the answer may surprise some of you.

While it took a decade for e-discovery to take over the entire discovery process and discussion, the new waves will likely come much faster as technology evolves and impacts everything that lawyers, especially attorneys involved in e-discovery, do. Attorneys may not be first-level reviewing any e-mails in five or ten years, but they could be looking at videos on an eighth-generation iPad! New avenues that currently don’t exist or only exist in their embryonic stage will be available to us all. There will certainly be new workflows and protocols created to incorporate technology into making the discovery process more effective and efficient – someone is always seeking ways to build a better mousetrap, and we at Counsel On Call fall into that category.

Part of my job as Discovery Process Architect is to continually analyze what’s working and what isn’t, what our teams can do to better utilize the available resources, how to deliver the best-possible work product, and ultimately what can we do to save our clients time and money. Predictive coding could very well be a part of that in the not-too-distant future. I do believe, however, that attorneys will still be an integral part of any smart and flexible discovery processes that are developed.

The bottom line: I don’t believe we’re anywhere near the Hal 9000/Space Odyssey scenario or a comprehensive predictive coding process eliminating the use of attorneys during the review.

But as the year nears its close, realize that change is constantly in the air these days. Change with it. Expand your skill set. Don’t get stuck where you are. Learn something new about technology this year. Read. Experiment. Become better at what you do.

I know these words have been uttered by every generation, but as one of the old guard who has transitioned into our brave new e-discovery world, I can speak to the value of its counsel.

Change to 11/16 Webinar

Lawdable — Mon, 15 Nov 2010 12:17:16 -0500

We've had a change to the Tuesday, Nov. 16, 1:00 p.m. ET Law.com webinar... Edward Efkeman, senior counsel at FedEx Corporation, will step in for Kristen Weathersby from Cox Communications. Kristen unfortunately had a conflict arise that will preclude her from joining us.

Edward is well-known in the e-discovery world and will discuss the process of bringing much of the discovery process in house, as FedEx has done in recent years. We're looking forward to sharing his knowledge with the audience, which is extensive and something we regularly rely upon.

If you haven't registered for MISSION:POSSIBLE: Successful Planning & Execution in the Discovery Process, you can do so here.

Coca-Cola, Cox and Counsel On Call Webinar Details

Dennis McKinnie — Thu, 28 Oct 2010 10:31:44 -0500

I guess that’s somewhat of a tongue twister, huh? Regardless, I am very pleased to announce that I will have the distinct pleasure of hosting a webinar via the Law.com network with two incredibly talented attorneys, Russell Bonds of The Coca-Cola Company and Kristen Weathersby of Cox Communications. The title: “MISSION: POSSIBLE | Planning & Execution in the Discovery Process.”

As the title indicates, both Kristen and Russ have been instrumental in helping their respective companies plan and implement discovery processes that have saved time and money while focusing on quality control and consistency. What I’ve found interesting is that both companies have gotten similar results while starting from very different places. Both Kristen and Russ are wonderful and engaging and we plan to have plenty of time for Q&A.

If you have time on Nov. 16, 1:00 Eastern, we hope you will join us for the free webinar. You can register here.

Consider "One-Stopping" Project Management, Not Technology

Barry Willms — Mon, 04 Oct 2010 10:44:47 -0500

Imagine a world where the one-stop shop exists for all things discovery. Who wouldn’t want that? It’s easy. It’s predictable. It’s cost-effective and so ultimately it’s desirable. With all this I agree. One recent article explores this in greater detail and makes a very compelling case for Why One Stop Shops Will Rule The World.

One difficulty, however, in implementing a one-stop solution is that technology, in particular, is so incredibly mobile and forever changing. It’s a target that never settles long enough for you to really hit it dead on. Experience has shown that one vendor may be really good at a single component of the technology puzzle but not so good at another. For example, one technology vendor may be really good at culling data, another at hosting and review, another at clustering and searching, or another part of the process. Finding the one-stop shop for all of these functions is not only difficult but it also is hard for a technology vendor to maintain it once they achieve it. Someone smaller or quicker to innovate will likely supersede its competition in one area or another pretty quickly. If you become completely vested in one technology, you will find it very difficult to transition to another. That reluctance or inability to change ultimately limits the opportunity to continually reduce costs, and in today’s e-discovery of millions of documents and hundreds of gigabytes, the additional cost savings can be significant.

One example is the law firm that has certain in-house technology solutions that their attorneys are familiar with -- and is already paid for -- that they can provide to the client at a reduced cost. The problem lies in the fact that many of these ‘free’ technologies are much slower and contain less functionality than the more up-to-date technologies that are available and cost more to the client overall. If the law firm’s technology solution is two or three generations old – very common this day and age as quickly as the tools improve – there could be millions of dollars in efficiencies and data reductions left on the table.

To be technology neutral -- while vetting the many great options in today’s marketplace -- means that you look at each step of the process and find the best technology solution for that particular technology problem, and then piece it together in the best package possible. That’s really one major component of project management. Knowing what is best in the client’s particular situation and then putting it together in the seamless manner that provides the ease, predictability and cost-effectiveness that everyone ultimately wants is the goal.

Don’t settle for a one-stop technology shop or you may find yourself behind the technology curve pretty quickly. Instead, look for a one-stop project management shop that can bring the technologies all together for you that meet your particular requirements for your type of documents and budget for that particular case.

Understanding the client’s needs, the client’s documents, the client’s budget and timetable all play into the best possible technology selection -- and these are areas in which great project managers excel.

Discovery vs. Document Review Is Value vs. Cost

Jane Allen — Tue, 03 Aug 2010 09:22:31 -0500

Counsel On Call has a Discovery Division while many other companies and law firms have document centers. We also have attorneys working on discovery teams, not document review teams. These might seem like subtle differences, but we are often asked why this is the case.

Many years ago, I met with a CEO of a large document review company that had several document centers. At the time, we really were not doing much of this work despite many requests from clients – it just didn’t seem to fit with our business model. During our discussion about the challenges of the document review business, he stated that he had “X number of seats” and explained to me how he had to get his cost per seat to less than $25.00 per hour. I asked, “By saying ‘seats,’ are you talking about attorneys?” He nodded. I left the conversation thinking, what are we doing here? I understood that it was a business and costs are important, but it was unsettling.

At the time, clients asked us to handle this work because we already had litigation or other types of attorneys working with them, and they appreciated our model: providing talented attorneys a different way to practice law, emphasizing professionalism but eliminating so many of the strings that go along with the traditional practice, and allowing modest rates, experience and competence to drive cost savings. So as I digested the conversation with the CEO, everything became lucid: Why can’t we bring our approach to the discovery process, of which document review is a component? Why can’t we do it differently and better? That commitment built a foundation of success, and our Discovery Division has expanded many times over in recent years.

It comes down to this: If the attorneys understand where documents and data fit within any case, and understand the importance a piece of evidence can have to a deposition, summary judgment motion or even the crux of the case... they provide more than just the cursory review of documents. They provide legal expertise and have the ability to participate in virtually any phase of the discovery process. They exercise judgment and discretion, they review and analyze; they have a solid understanding of any case and how what they are doing fits within the strategy. Our attorneys may not take the depositions but they are in a great position to work with those who are. They aren’t just a seat in a massive room, but a valuable team member working within a well-planned structure that capitalizes on their experience and ability to contribute.

This results in providing value throughout the discovery process, not just for one component or a heightened focus on lowering a “per seat” cost. As we’ve stated before in this space, the hourly rate of the attorneys is important in achieving cost savings, but issues such as experience, leadership, technological flexibility and execution are equally important when looking at value and savings over the life of an assignment. So when we combine the talent and cost practicality of our attorneys with processes that are continually being improved and evaluated, a thorough understanding of technology and the various options that exist, a focus on lowering costs by dramatically reducing data and gaining efficiencies, working across multiple stages, maximizing resources on a repeatable basis and treating attorneys with professionalism, it equates to a better, consistent, less expensive and value-driven work product.

I would love to travel back and ask that CEO about costs over the life of an assignment, the flexibility to choose software that’s right for a particular data set, implementing review efficiencies, quality control protocols, best practices and early case assessment initiatives. I would ask him if their attorneys choose to practice with his company, whether they communicate with outside counsel about case strategy, depositions, motions and other aspects of the discovery process. Whether thought is put into the environment and teams in which people work together. I would ask how they do a better job for their clients on the next assignment, about the metrics they use to track results and about the other litigation phases on which they assist.

All of these issues differentiate discovery from document review, and all of these issues speak to value versus cost.