Contract Attorneys – The Latest Addition to the Endangered Species List

Last week I read an article on law.com titled “Does Predictive Coding Spell Doom for Entry-Level Associates?”  The article was prompted in part by the attention predictive coding is currently receiving as the de jure eDiscovery topic and the starring role it has played in the increasingly soap opera like Da Silva Moore case.  The article concluded that entry-level associates were still necessary and vital assets, even with the rise of predictive coding. 

I agree with the article’s conclusion, and am happy for the associates, but what about their less well placed colleagues, contract attorneys?   The threat for survival that contract attorneys face comes not just from predictive coding but from law schools that spill new graduates like a broken faucet, as well as from employers that take advantage of the situation by offering unscrupulously low wages knowing that for every position they have, there are several applicants willing to fill it at almost any rate or cost.  So, is there still a place for contract attorneys?  Will predictive coding and the deluge of law school graduates wipe out their positions, or depress their value to the point where the attorneys would make more money working at McDonalds?  I hope the answer is no, and the answer should be no if the legal community takes a moment to realize they need to treat contract attorneys  like the nonfungible assets they can be, rather than as pariahs who are undeserving of earning even $20 an hour. 

Despite their persona non grata reputation, a quality contract attorney is worth their weight in gold, and the legal industry should do everything it can to ensure they do not go the way of the dodo, whether because of technology, wages, or anything else.  Contract attorneys’ hands-on expertise and knowledge of review platforms and software can add great efficiency and effectiveness to a project.  Their in-depth familiarity with the documents and details of a case can be illuminating, and their understanding of the eDiscovery process can be a difference maker.  The truly good contract attorneys are knowledgeable experts that can be leveraged to your advantage and provide valuable input and consultation to your case and how you prepare for it.  More than hired mercenaries whose goal it is to plow through data as quickly as possible, contract attorneys can be your eyes and ears in the data.

At the end of the day, you get what you pay for, and nowhere is that more true than with contract attorneys.  You may be able to fill positions offering wages as low as $15 an hour, but that will not get you much more than a warm body.  With such a low rate of pay, a contract attorney will have every incentive to look everywhere and anywhere for a different job.  They will lack quality, consistency, motivation, and loyalty, resulting in a poor quality review, even if cheap.

Alternatively, as with most positions in life, the more faith and responsibility you show contract attorneys (along with paying them a decent wage for someone with a law degree) the more you obtain from them and the more value they will add to your case.  I urge you to look beyond the mere number efficiencies technology such as predictive coding can provide, to look beyond the hourly rate you are paying, and to focus instead on the intangible values added to your overall case.  That is where you find the true value and worth of your contract attorneys, and where you will find, if utilized properly, the good ones are invaluable and indispensible.  Do not get me wrong, I am not suggesting that you should forgo the use technology or that you should be offering your contract attorneys partner level compensation.  I am simply saying that technology should be used to supplement and enhance your contract attorneys’ value and capabilities, not replace them. 

Despite advances in technology, the human element of eDiscovery remains more vital and important than ever.  A key component of this human element is the contract attorney.  Even with the advance of predictive coding and like technologies, skilled contract attorneys should continue to be valuable commodities undeserving of a place on any endangered list.

Plan on Planning – Help Your eDiscovery Personnel Help You

I had lunch with an eDiscovery colleague last week and he related to me a recent case he worked on. A few weeks ago, his client informed him that they had agreed with opposing party to make a production in four days. The client did not have a production population determined, and they had no idea how long it would take to create and run a production before they agreed to the deadline with opposing counsel; they picked a date in no way related to the reality that was their data set. None of this had an effect on their expectations for the viability of the project of course. The result? A rush project, extra people working extra hours to get the job done, tension, and having to renegotiate a new deadline with the opposing party because the date was simply unrealistic given the amount of data eventually involved. Ideal? No. Fun? No. Avoidable? Yes.

The above story exemplifies (although perhaps somewhat to the extreme) the experience eDiscovery personnel (whether in-house, outside counsel, or vendor) have with far too many clients in far too many cases. eDiscovery personnel are often left out of the decision-making process and have to scramble to meet artificially created deadlines that have little or no bearing to the work. We all have deadlines beyond our control, so eDiscovery personnel are no different than most in that regard, however, what can be exasperating for eDiscovery personnel, is that in the case of eDiscovery, the deadlines need not necessarily be so tight and out of our or control, or at least knowledge.

To avoid such rush projects, unobtainable deadlines, and wasted time and money, counsel should plan ahead for eDiscovery and include their eDiscovery personnel in that process, as well as in the negotiation of deadlines, to the extent possible (even if just as a point of reference and knowledge). Some easy things you can do to help your eDiscovery personnel better meet your needs, include:

• Create an eDiscovery Plan ASAP – Ideally you would create this before the case begins or soon thereafter. Be sure to include your eDiscovery personnel in this planning so that they can assist with properly setting eDiscovery related deadlines and expectations.

• Leverage Your eDiscovery Personnel’s Expertise – A classic example would be engaging them for search term analysis before agreeing to terms with the opposing party and before you make any productions. Provide the terms to your eDiscovery personnel for testing and sampling, leveraging their ability to write searches and manipulate review platforms. Via such exercises, they can sample documents testing for precision and recall, with the ultimate goal being to create a data set that is defensible and proportionate to the value of the case.

• Do Not Agree to eDiscovery Deadlines Before You Know What the Job Will Entail and Without Input from Your eDiscovery Personnel About How and If It Can Be Done – I-Med Pharma, Inc. v. Biomatrix, Civ. No 03-3677 (DRD), (D.N.J. 2011) is a great of example of why you need to know what the task entails before agreeing. The plaintiff’s in the matter agreed to search terms without testing them and without the advice of their eDiscovery personnel. The terms generated over 64 million hits and 95 million pages, unreal (and expensive) numbers.

• Build in Extra Time and Do Not Wait Until the Last Minute – The only thing worse than trying to complete a complex and important project precisely and accurately, is doing so with little notice and no time for mistakes. By engaging your eDiscovery personnel early in a matter, you not only put them on notice, but it will help them help you obtain the knowledge you need to negotiate and enter into reasonable deadlines and tasks with plenty of time.

You may be asking Why should I do all this, after all, are not my eDiscovery personnel paid to work for me? The answer is, aside from making your eDiscovery personnel happier and more motivated, it will also improve your case; you will have more time to do a better job and implement quality control measures, the court and opposing party will appreciate that you can deliver on what you promise, and by planning ahead, you can create cost saving efficiencies and avoid increased fees for rushed projects.

Consolidation of Services and Functionality: A Growing Trend in the eDiscovery Field. Will It Cost Customers in the Long Run?

Reed Smith, a US based international law firm, announced this week that they would be bringing Relativity in-house, continuing their expansion into the eDiscovery market (in 2011, the firm established a team dedicated to eDiscovery that has grown to over 50 lawyers). This marks a developing trend in the industry; many law firms are taking deliberate steps to ensure they keep eDiscovery work in-house and take back any business they may have lost to traditionally lower cost eDiscovery vendors and service providers. From the firms’ perspective, this makes sense; keep as much business inside the walls as possible, even if that means making capital expenditures.

Reed Smith indicated they would utilize Relativity primarily for document review, which is a relatively cheap (from the firms perspective) and easy way for the firms to make money off their clients. Money, that previously often went to eDiscovery vendors who offered superior technology. Many other firms are employing a similar strategy. With the acquisition of programs like Relativity, the vendors no longer clearly offer superior technology, and decisions about who performs the work become more contingent on relationships, which are often to a law firm’s advantage. In the long term, this is smart business for the firms.

From the clients’ perspective though, this could mean higher costs, as law firms traditionally charge higher rates than their eDiscovery vendor counterparts do. For the eDiscovery vendors, it obviously hurts them, as Firms like Reed Smith will take some, although not all, business that the vendors previously attracted because they had better technology and tools.

Software companies are likewise consolidating the functionality they provide either via development or via acquisition. One need not look any further than KCura’s Relativity for an example of the former, while Symantec ‘s acquisition of Clearwell is a clear example of the latter. Both KCura and Symantec offer products regarded as best in class, and both are aggressively expanding those products’ capabilities, sometimes at the expense of other less dynamic companies and products that not that long ago were consider must-haves in the eDiscovery world.

KCura is aggressively developing Relativity, once limited to review functionality, on both the front and backend of the review process. KCura is improving Relativity’s processing capabilities, adding the ability to ingest and process raw/native data, and creating tools like Fact Manager, which allows users to track and manage important facts, people, and documents within Relativity. The first improvement is a direct attack on programs like Law Prediscovery, while the later provides direct competition to CaseMap, a Lexis product.

By developing and adding these new functions, KCura has not only increased Relativity’s value and utility, but it is threatening formerly symbiotic products by poaching their customers; if you are going to use Relativity for a given matter, and especially if you are going to use it for multiple matters, it simply makes more sense to use the functionality built into Relativity and included in the price rather than license and pay for multiple products. While products like Law Prediscovery and CaseMap and will remain viable options for those not using Relativity, they will also begin to see their customer base shrink because of Relativity, which could mean difficult times ahead if they are unable to adapt quickly.

What all of this consolidation and expansion likely means is that it is going to be more difficult for the small and niche services and software providers to survive. eDiscovery shopping may become more convenient, as one-stop shops and applications become more common, but it may also become more expensive, as customers are forced to pay law firm prices and purchase programs that do everything and have a price tag to show for it.