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Posted by Ron Friedmann on May 25, 2011, 12:43 pm
Last month I read an insightful blog post at Horses for Sources, the advisory business of respected outsourcing analyst Phil Fersht. In a guest post, Where have all the consultants gone?, Deborah Kops, principal of sourcing strategy firm Sourcing Change, looks at developments in the business process outsourcing (BPO) industry. Because the roots of legal process outsourcing (LPO) lie in BPO, following the latter can help better understand the former.
Ms. Kops observes that BPO success was originally driven by consultants who had intimate client and hands-on industry experience. She writes
“the pioneers of the outsourcing industry, primarily BPO, came out of consultancy backgrounds… Consultants from the Big-whatever-it-was, the then Andersen Consulting and even the likes of the white shoe strategic firms, got a bee in their bonnets that their intimacy with and knowledge of their clients could be harnessed to improve and deliver business processes. They formed business lines with skin in the game, exclusively focused on doing rather than just advising, tapping not only into their own expertise, but that of their partners and colleagues.”
These BPO founders, she notes, are now exiting the business. Current BPO managers are capable but lack “the soft and problem-solving skills that come from having the training, intellectual freedom, proximity, and the ability to connect the dots that only consulting experience allows.” So she expresses concern that the “real sourcing benefit” will be lost because it “comes from the ability to solve a problem, the skills to develop a relationship with a client team at the highest level, and the knowledge of what drives value in an industry from the top down.”
Fortunately, LPO does not suffer this issue. Ms. Kops’ post nonetheless helps illuminate the real benefit of legal outsourcing. Many lawyers think labor cost savings drives legal outsourcing. We disagree. The real value lies in providers’ deep experience solving lawyers’ problems.
In LPO, the BPO analogue to consulting experience is a deep pool of legal management, operations, and process improvement experience. For example, Integreon management includes former practicing lawyers who pioneered outsourcing, lawyers who managed document review for law firms or for corporations, senior law firm managers such as COOs and CIOs, and process improvement consultants. Hands-on law firm and law department operational experience extends deep into our middle management team. Our competitors could make similar statements.
This collective wealth of experience gives a provider deep insight into law firm and law department operations and ideas about how to improve practice and support. My Integreon colleagues and I all feel the same sense of “there has to be a better way to do this”. We all sought out a place where we could work closely with lawyers to help them improve what they do and reduce costs. So reading Ms. Kops’ post triggered a very personal reaction – that’s us, without the problem of exiting experts.
Of course access to teams of associates in low cost locations is an important benefit for our clients. The real value, however, is our ability to improve how lawyers work and how law firms operate through process improvement and technology. Fortunately, as a still-growing industry with a plentiful supply of experienced legal managers interested in outsourcing, we do not face a brain drain.
Posted by Ron Friedmann on May 6, 2011, 7:32 am
Legal Week just published No LPO Rush Despite Cost Pressure (Legal Week, 5 May 2011), an in-depth look at the UK legal process outsourcing (LPO) market that includes in-depth analysis, numerous charts, and a key findings summary. It is based on a 575-lawyer survey by Incisive Media Research that Integreon co-sponsored. We present some highlights and comments here.
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LPO Penetration is Up and Rising. The survey found that LPO penetration in law firms is up substantially from other recent reports. For example, in a June 2009 blog post, we reported on surveys that found only about 5% of firms had used LPO. Now, Legal Week finds 15% of UK law firms use LPO services. Furthermore, over half of respondents – both LPO users and non-users – believe that law firm use of LPO services will grow over the next year. Given another trend the survey identifies – growing cost pressure – it is reasonable to conclude that LPO penetration will continue increasing.
On the law department side, 6% report using LPO. We think this lower penetration reflects a client preference that law firms partner with LPOs. The survey results support this view: both firms and departments “give the biggest vote to a solution where the law firm supervises the outsourcing. Amongst law firms, the vote here represents nearly 52 per cent of respondents. In the inhouse sector, nearly 29 per cent support this approach.”
Work Suitable for LPO Spans Several Practices. The survey provides insight on the areas most suitable for LPO work. Scoring highly among both inside and outside counsel were litigation document review, e-discovery (e-disclosure), and contract management . Significant minorities also believe compliance, library/research and know-how, debt recovery, and conveyancing are suitable for LPO.
Using LPO is Not a Risk to Law Firm Brands. Some law firms seem to worry that using an LPO might send clients the “wrong” signal. The survey show this fear is unfounded. A vast majority, about 75%, of both inhouse and firm lawyers believe using an LPO “does not diminish the brand.” The article also notes that some of the largest and best-known UK law firms use LPO and so observes “If the leading firms are using LPO, it is difficult to see LPO as a sign of weakness.” This is consistent with our view, summed up by my colleague Matthew Banks in the article, saying
“Rather than see their brand diminish, those law firms that embrace LPO will gain a competitive edge. What we term ‘LPO 2.0’ involves close collaboration between law firm and LPO provider. The LPO provider’s solutions are so closely integrated into the firm’s overall value proposition that they are simply viewed as part of the suite of solutions the firm provides to its clients. The firm’s brand is enhanced.”
The Real Issue is Lower Cost, Not LPO. We recently suggested that the question is no longer “outsource or not” but rather “what’s the best way to centralise non-core support functions in a low cost location?” (See Legal Outsourcing – A Changing Conversation by Mark Ross and Ron Friedmann in Outsource Magazine, 17 Nov 2010.) Legal Week reaches a similar conclusion:
“Outsourcing is typically seen as the relocation of repetitive work to India. But LPOs can take many different forms… LPOs are being developed by many firms in the UK. Some are doing forms of it by outsourcing routine work from their City offices (where salaries and other costs are higher) to regional offices where they can offer lower charge-out rates. Other firms – particularly the big name international firms – are working with regional law firms to outsource those processes on which they can add little extra value.”
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We think the results confirm our view that lawyers have become comfortable with LPO and that market pressures will continue to favor LPO adoptions. We understand, however, that not all share this view. For those who remain skeptical about LPO, the article does a nice job presenting contrasting opinions.
Posted by Integreon on April 21, 2011, 7:45 am
Integreon has just published two reports on emerging trends in cloud computing — ideal reading for organizations considering the adoption of cloud technology. Both are authored by Integreon’s Jocelyn Graham, one of the 100 most influential women in IT, as named by United Business Media’s CRN. Jocelyn currently leads our Grail Research Cloud Center of Excellence and Cloud research practice.
The report, Cloud Computing Trends: At the Horizon’s Watch, is a follow-up to our cloud primer, Cloud Computing: Fact vs. Fog. This latest report highlights key themes around customers and adoption drivers based on interviews with 20 cloud computing experts.
The second report, Navigating the Cloud: Insights and Guidance from Cloud Connect 2011, provides insights from the recent 2011 Cloud Connect Conference held in Silicon Valley.
Posted by Integreon on April 8, 2011, 10:41 am
Integreon has launched a new program to provide informative podcasts covering “Top 5” tips on a range of topics for legal, business, and technology professionals. The first three podcasts feature Integreon’s Jeff Fehrman, VP of consulting and forensics, on the following e-discovery topics:
Top Five Things You Need to Know About Social Media and e-Discovery
Complying with current e-discovery rules is challenging enough, but social networking sites are creating new headaches for corporate compliance and legal departments. This podcast offers advice for how to incorporate social media into your e-discovery strategy.
Listen to the podcast
Top Five Tips for Reducing the Cost of Discovery
Many organizations still find it difficult to efficiently uncover relevant data for legal cases, resulting in rising costs. This podcast offers tips to help organizations rein in cost by better managing the discovery process.
Listen to the podcast
Top Five Things to Consider Before Your Meet-and-Confer
Under the Federal Rules of Civil Procedure, the first 120 days of litigation are the most critical in the lifespan of the case. You have a small window of opportunity to leverage the meet-and-confer requirements to your advantage or lose the opportunity to collect the data required to effectively litigate your case. This podcast offers suggestions to help maximize the effectiveness of meet-and-confer.
Listen to the podcast
Posted by Ron Friedmann on March 9, 2011, 3:27 pm
This is a live blog post from Welcome to the Future: Trends in the Delivery of Corporate Legal Services at the Center for the Study of the Legal Profession at the Georgetown University Law Center. This session is Value: How do we define it? How do we measure it?
Moderator: Aric Press, Editor in Chief, The American Lawyer
Panelists:
- Susan Hackett, Senior Vice President & General Counsel, Association of Corporate Counsel
- Mark Harris, CEO & Founder, Axiom
- Lisa Damon, Partner, National Chair of the Labor & Employment Department, member of the Executive Committee, Seyfarth Shaw LLP
Susan Hackett, Senior Vice President & General Counsel, Association of Corporate Counsel
The ACC Value Challenge initiative began before the economic crisis. Its goal is to connect the cost and value of legal services. Value-based service includes a focus on partnering; rigorous cost control; risk sharing; long-term relationships with continuity and predictability; skills, staffing, and training; lean, efficient, process-oriented management; and communication.
Value is hard to define. The value conversation needs to be tailored to each situation. It may begin with fees but it should not end with fees. Key is a better assessment of each matter (scoping and process). Whatever the definition, metrics is key – this means being data driven, even that makes lawyers uncomfortable. This will take work to define a common lexicon so clients can ‘compare apples to apples’. Lawyers will need to look to other industries. They will need to get over the attitude “what I do is unique and unpredictable.” The ACC Value Index offered an early set of categories of common interest to examine but it needs to move the next level of assessment. The future of value assessment will be data-driven.
Higher value will be driven by more careful consideration of how the work is done and by whom – process management. Process assessment requires lawyers to disaggregate and unbundle what they do.
Evaluation is key to sustaining higher value. Need a post-mortem at the end of every matter. (Editorial note: this is often called an “after action review”.)
Knowledge management is the sleeping giant. We place too little value or attention on capturing, sharing, and re-using knowledge.
Lisa Damon, Partner, National Chair of the Labor & Employment Department, member of the Executive Committee, Seyfarth Shaw LLP
The firm started about five years on its own value initiative. The firm looked at Lean Six Sigma. Firm wanted a process methodology to guide its efforts. Got into it and hated it. But then saw a lot of benefit in it. The firm trained 35 top lawyers in the firm on Lean Six Sigma. The firm liked the data-driven elements, voice of the client, and its way of thinking about process. Realized that Lean Six Sigma is not just about commodity work. Today, firm uses it, along with legal project management.
The voice of the client sounds simple but really understanding what clients want and need is not easy. Evaluating lawyers by billable hours misaligns their motivation and the client view of value. So firm had to re-align fundamental metrics internally with what clients want. Suggests firms need to link client satisfaction to lawyer compensation.
The firm is still on a journey to align all of this properly. The firm adopted the ACC value score card. But the score is less important than the conversation about it. Seyfarth continues to consider what metrics it uses and is engaging clients on how they value legal service. Deals are pretty easy to value; for litigation, firm is trying to align client exposure and cost. Whatever the metrics, being transparent with clients is critical. For example, clients can see raw, daily time.
Cautions that unbundling may not be the best approach for clients. It limits the client’s ability to manage the whole process. Suggestion is that law firm needs to coordinate a series of processes, for example, a “union of law firms.”
Mark Harris, CEO & Founder, Axiom
GCs want commercial value delivered but think most law firms don’t deliver it. Presents a 2×2 matrix with risk and profit on axes. This segments legal spend into “good” and “bad” spend and into “cost” and “outcome”. Good spend creates value; bad spend avoids risk or is work company must do (e.g., because of regulations).
How should we define value for bad spend, for example, litigation. Value means reducing cost as much as possible. Need to focus on which resources should be deployed. Should clients pay for big law firm infrastructure for work that does not require it?
Highlights spend on contract management as good spend. Opportunities exist both to cut cost of contracting and to increase revenue by better enforcement of contract rights.
Discussion
Aric Press asks where / what data we should collect. One suggestion: law firms pool data to determine how much a matter should cost. Panelist Mark Harris suggests you don’t need a lot of data to decide that lawyers at $500/hour should not be doing certain types of work. Audience member suggests that it is more important to focus on client side data rather than law firm data. In-house counsel audience member: start by eliminating waste, don’t focus first on cheaper resources, focus on what you do not have to do. Mark Harris argues that the change and innovation must come from general counsels of the largest companies.
Posted by Ron Friedmann on March 9, 2011, 10:44 am
This is a live blog post from Welcome to the Future: Trends in the Delivery of Corporate Legal Services at the Center for the Study of the Legal Profession at the Georgetown University Law Center. This session is Getting on the Radar Screen: How Important is Brand?
Panelists:
- Wendy Bernero, Chief Marketing Officer, Fried Frank
- Dan Ross, President, Wechsler Ross & Partners
- Lisa Hart, Chief Executive, Acritas
- Jolene Overbeck, Chief Marketing Officer, Hogan Lovells
- Kenneth Grady, General Counsel & Secretary, Wolverine World Wide, Inc.
Brand is the promise the firm makes to a client about the experience of working with that firm. This involves what you offer, how you deliver services, and how you communicate.
Jolene Overbeck, Chief Marketing Officer, Hogan Lovells
Brand is much more than just a logo. Holds up a Mac notebook and points out that Apple is now one of the most widely and admired global brands. Law firms aspire to such recognition but are a long way off but observes global firms are breaking out of pack a little bit.
Until recently, law firm brand design was internally focused, what lawyers at the firm liked. Today, forward-thinking firms design their brand around what clients want. To sustain a global law firm brand, the individual lawyers need to have a strong personal brand within their area of expertise. Industry focus is also key to brand because all the research shows industry know-how is key to the client service experience. So Hogan Lovells will communicate its lawyers’ expertise and industry know-how.
Another important part of the firm’s brand is the service experience. So the firm is building a client-centric business. This requires internal processes and mechanisms so that everyone in the firm is focused on what the client wants. This means channeling lawyers ego to the benefit of the client. Good service also means connecting with the client personally and emotionally. So the firm works with young lawyers to help them understand communication styles and personality types. Other ways to support the brand: good team work, good work environment, and client feedback.
Audience Q&A focuses on the challenges of training lawyers to be more client-centric. Some point to law school training, others to lawyer personalities, as problems to address.
Kenneth Grady, General Counsel & Secretary, Wolverine World Wide, Inc.
Discusses brand of casual and comfortable footwear that unites Wolverine’s 12 brands of shoes across 190 countries and 4000 trademarks. Wolverine is a brand company.
When Grady thinks about brands and law firms he thinks of commercial for Bacon Bits: a dog barking and a person talking to the dog and what the dog hears – blah blah blah bacon bits. Says same is true for law firms: blah blah blah firm name.
Law firms have much opportunity to develop their brands. What I hear from law firms is that they have 1000 brands (attorneys) channeled through one distribution channel. Each operates independently – there is no centralized brand. As inhouse counsel, we see 1000 brands that are different.
Grady looks for a lawyer (not a firm) who will work with him collegially and who adds value. He needs to find an individual who has the right skill set to solve a problem. He would like a law firm brand that conveys that all lawyers meet these criteria. The law firm brand should mean something specific. And that does not mean quality because quality and expertise are givens. Likewise, brand does not mean the right practice or geography. Grady assumes that firms that come to him have already figured that part out and would not talk to him if they did not. So much of what firms pitch, Grady takes for granted. S0 law firm pitches are, in essence, wasted.
Grady observes that many lawyers pitch their expertise in other industries instead of focusing on footwear / apparel and retail drivers. Complains that firms come to him and talk about their telecomm experience, which is irrelevant to him. He wants to see a practice built around retail and wholesale business, ideally with apparel experience as well. Wants not just technical advice but also strategic counseling. So industry experience is the key and law firms should be pitching that.
Wolverine was looking for new EMEA counsel a few years ago. Talked to many firms in the region. The firm selected had two appealing brand promises : (1) an organized group of lawyers and knowledge management resources focused on retailing and (2) efficient delivery of services that provided good value for the money.
The Essential Knows:
- Know the client’s brand.
- Know the client’s industry.
- Know to whom you are marketing. Know your customer. References the type of customer segmentation Wolverine and other consumer companies do.
- Know who influences the buying decision (e.g., references are key, so is the ACC Value Index)
- Know your own brand
- Know your own brand promise. Every lawyer needs to be able to articulate it. All need to have same elevator pitch.
- Know your product, what you are really selling.
- Know what your product is not. Complains of lawyers who pitch him and who know less than he does about the issue at hand.
- Know the market for your product. Who is your real competitor. It’s not every firm. Articulate your point of differentiation.
Dan Ross, President, Wechsler Ross & Partners
Brands affect decision making that are not always obvious. Will use an example that may not seemingly relate to legal at outset. A good brand is less about the provider than it is about the customer / client. Customers use brands to define themselves. A pre-requisition of a successful brand is a good product; that’s a given. Brands are about aspirations of its customers. How does this relate to law firms?
Firms need to make clients feel good about themselves. They should feel smart about choosing a firm. For example, rich investors will choose Pimco or a hedge fund over Fidelity, even if returns are similar. The wealthy don’t want to feel like they are mass market. How can firms build successful brands? Focus on content and character. Content is what you stand for; character is who you are. Studied top 25 law firms a few years ago by reading their web sites, which all used the same words to describe themselves. These firms are not differentiating themselves. Among the top 25 firms, 18 firms clustered around global, leader, or excellence.
The outliers were more interesting and instructive. Morgan Lewis positioned itself around collaboration. It is, however, easy to say collaboration but hard to prove. You can only believe it through experience. DLA Piper uses “everything matters” – that’s distinct but it’s hard to know what it means. O’Melveny uses “community”, which is daring for a law firm but the downside is that is not a meaningful attribute for clients. But this may appeal more to an internal audience. Weil Gotshal positions itself as “sound judgment”. This is a strong client benefit but it is very hard to prove. Greenberg Traurig is “built for change” – this is a client driven brand. Clients seek lawyers when they feel threatened by change so this is good positioning. Ross says its easier to own this than other claims.
There were 2 firms among top 25 that did not have clear brand positions. But they were strong on character. Skadden and Gibson Dunn did not boil down to a single statement but both are visually differentiating. Talks about use of color, design, and word choice to create character.
Posted by Ron Friedmann on March 9, 2011, 9:27 am
This is a live blog post from Welcome to the Future: Trends in the Delivery of Corporate Legal Services at the Center for the Study of the Legal Profession at the Georgetown University Law Center. This session is Empirical Overview: The Life Cycle of the Client-Law Firm Relationship, presented by Lisa Hart, Chief Executive of Acritas.
[NOTE: The data presented below are from a proprietary survey conducted by Acritas and are copyrighted to Acritas.]
Hart explains the cycle of acquiring new clients: Aware > Favorable > Selection > Satisfied / Loyal > Advocate. She did research to determine what clients want at each of these stages. A group of law firms fund her research of 2,000+ general counsels.
Research looked at what makes a law firm ‘top of mind’. The biggest factor is driven by day-to-day contact with lawyers. But the average firm can increase is awareness by one-third by general reputational factors.
The drivers of how clients develop a favorable view of a firm: lawyer expertise (77%); service is a far second at 44%; then relationship at 25%; price is at 13%.
The driver of selection: For firms retained over the last six months, 30% said practice expertise most important, then 23% geographic expertise. Only 5% cited low cost.
The drivers of selection: When asked about what stood out form a firm pitch: 14% understood our business; 12% understood our needs. Firm reputation barely rates.
The drivers of loyalty: expertise (29%); service (26%); relationship (25%); knowledge of my business (14%); competitive cost (8%).
This is in context of five year market trends: (1) increasing need for international legal services; (2) efficiency drive; and (3) increasing regulatory complexity. The momentum for non-hourly billing is increasing. Buyers are moving from individual relationships (one in-house lawyer to one firm lawyer) to institutional relationships.
Posted by Ron Friedmann on March 1, 2011, 10:09 am
I frequently discuss with law firms and law departments how best to provide lawyer support, including outsourcing as an option. Inevitably, the conversation turns to support quality. I am surprised how few have defined what “good support” means.
Defining good lawyer support was a big part of my presentation last week at the Ark Group conference Best Practices & Management Strategies for Law Firm Library & Information Service Centers. Jean P. O’Grady, Director of Research Services & Libraries at DLA Piper LLP (US) and I presented the keynote panel, Outsourcing: Outrage or Opportunity. Marsha Pront, Senior Library Consultant, IMS Legal Research Services moderated. In the audience were 45 people from 35 mostly large US and Canadian law firms.
I said that defining good support requires metrics, service level agreements (SLA), and a governance structure. Without these, managers cannot assess if they provide good service, where improvement opportunities lie, or the viability of alternative support approaches. When I asked for a show of hands of who had instituted metrics or SLAs, few hands went up. This is pretty typical in law firm audiences.
We did not have a chance to discuss what metrics to track but “core” support functions cry out for metrics. Jean, citing Jim Collins in Good to Great, defined core as follows (1) “Good to great” companies focus on what to do and (2) they also put equal focus on what not to do and what to stop doing. She surveyed attendees in advance, asking which library functions respondents consider a core business activity of the firm. She reports the results at her Dewey B Strategic blog post, Outsourcing, Outrage or Opportunity? What is Core?
Once you know what to measure, you have to define the right service level to offer. For libraries that might mean, for example, categorizing research requests by complexity and, for each complexity level, specifying a turn-around time.
A governance structure is also key. One element of governance is a process to recover from errors. Another is articulating criteria for when the SLA applies. For example, appropriate governance might limit in-depth business development research to partners with a demonstrated track record of winning new business.
As for the question of “Outsourcing: Outrage or Opportunity,” many seemed skeptical that outsourced service could be as good as what they provide internally. To understand this view, I asked two questions. First, did the audience believe that every support function in their firm was “good”. The looks and comments confirm what everyone in a large law firm knows: some support functions just are not that “good”. But of course, not mine!
And second, I asked how many had work experience in an organization that provides outsourced services. Only a couple of hands went up. I then pointed out that every law firm employee, in fact, works for an outsourcing organization. In-house counsel can “make” legal services or “buy” them from law firms on an outsourced basis.
I hope the audience left with the message that metrics, SLAs, and governance are key both to judge quality and know where to draw the make / buy line. To optimize lawyer support, law firms must adopt the right evaluation framework. That is true whether they choose to work purely internally or to outsource.
[Update March 3, 2011: Steve Levy of Lexician wrote Outsourcing: Bad Word or Wrong Word? that comments on above. He suggests that managers focus on who is doing the work, not who employs the worker, and that the issue is more one of delegation. I agree.]
Posted by Jocelyn Graham on February 1, 2011, 10:56 am
Cloud computing has gotten a lot of press in recent years and, as is usually the case with emerging technologies, the media attention has been accompanied by misinformation, conflicting viewpoints, and FUD (fear, uncertainty, and doubt).
It can be challenging to make sense of it all and get the right information needed to make informed decisions. Grail Research, an Integreon company that conducts and delivers high-end custom market research, recently issued a report that helps clear the air by exploring the current state of cloud computing, obstacles to business adoption, and expectations for the future.
The report, “Cloud Computing: Fact versus Fog,” is divided into three sections, each geared toward delivering insights that are critical to helping organizations make good cloud computing choices.
- Foundations of Cloud Computing: Provides the background required for intelligent evaluation of cloud-based systems, including definitions, deployment models, market growth, and service delivery models.
- Obstacles and Considerations: Delivers key insights – including adoption drivers; barriers to major adoption; security, privacy, and other compliance concerns; pros and cons based on company size; economic models and hidden costs; and “green” considerations – to help develop appropriate cloud strategies.
- Future of Cloud: Forecasts evolutionary changes in cloud technologies, consolidation in the ecosystem, initiatives to address security concerns, and changes to business models and offerings.
This report is a “must read” for those concerned about risks of cloud computing and for anyone looking to adapt to and take advantage of Internet-based, on-demand computing.
To download a copy (PDF) of this complimentary report, click here.
Posted by Ron Friedmann on January 31, 2011, 4:53 pm
This is a live blog post from Legal Tech NY 2011. Foster Gibbons, Vice President, Legal Solutions (Global Lead / Document Review), Integreon presents on:
“Pushing the outside of the envelope” is an aeronautics expression that implies taking design, implementation and execution to the next level through performance improvements in technology and technique. This concept is mirrored by best practices in the legal realm which imply a repeatable standard that delivers the most efficient, effective result. This session will help legal professionals understand better how to define consistent practices and processes for managing review in the context of legal discovery and in a manner that balances efficiency, effectiveness, and adaptability for leveraging technology.”
Session notes:
Introduction. Lawyers who perform document review apply legal know-how but are not practicing law; they act under the supervision of licensed lawyers to determine if documents are responsive and if they are privileged. The goal of the review team is to approximate as closely as possible the judgment of the case lawyer who knows the most about the case.
The old practice was to put a room full of junior associates to work reviewing boxes of documents. They might start with 100s of boxes. Their goal was to winnow the collection down to a few boxes that more senior lawyers would read in more detail. The mid-level lawyers would further winnow the collection to a relative handful that the partner would review and use.
The process today is similar except the equivalent is 100-million boxes of paper. There is no way humans can review all. So it’s critical to use technology to winnow the collection. But this has to be done properly.
The three goals of the document review are to
- maintain quality - correct and consistent results; the selected docs must match with senior counsel’s view of the case.
- cost containment - use appropriate tools (e.g., workflow), winnow the collection intelligently
- defensibility - this means minimizing risk of sanctions because of errors in discovery process
Best practices in document review reflect a point in time, the state of the art in the most appropriate use of technology. “If there is a lot riding on the outcome of litigation, there is a lot riding on the manner in which discovery, and by extension, document review, is conducted.”
Document Review Models. There are several models for conducting doc review today. The old model of armies of junior associates is no longer effective; clients are not willing to pay junior associate rates for this task. “Staffing model” and “managed review model” are two common models today. In the former, it is up to the law firm to select and manage reviews, typically hiring staff through an agency. The law firm must design the review process, and develop the appropriate training for the review team. In the latter, a vendor provides a review team, facilities, tech support, and project management. The vendor shares responsibility with counsel for managing the process and defensibility.
Best practices in document review include tailoring the project plan to counsel’s specs, following current industry practices, vetting people appropriately (e.g., reference checks and use of lawyers), maintaining appropriate metrics on performance and quality, and providing the review team comprehensive, substantive and platform training.
Workflow deserves special consideration. The simplest is a “linear” review, where every document is reviewed in the order in which it is ‘found’. This is not a good practice. It is better to prioritize the review by factors such as custodians, date ranges, or document types. It may also be necessary to assign documents by substantive type, for example, scientific docs may need to be reviewed by those with science training, so this requires matching document substance to reviewer qualification.
Quality control means approximating as closely as possible lead counsel’s judgment about documents. It also requires internal (across the review team) consistency, using formal statistics to ensure high quality results, and tracking performance of all reviewers.
Communication should be conducted on a formal schedule. Especially early in the case, the review team should be in regular contact with lead counsel. There will be many questions and sample documents for counsel to review. This helps refine the criteria for reviewing documents (and adjusting the review documentation).
Documenting the review is critical for being able to defend the process. For example, you need to be able to explain / justify custodians chosen and review criteria. These and other decisions must be documented in real time. The documentation binders end up being quite thick. If opposing counsel challenges the production, having thorough documentation is essential to defend the process and outcome.
