Contract Attorneys A to Z is a compilation of my most popular blog series. The white paper explores the ABC's of hiring, orienting and managing contract attorneys as well as best practices tips on designing review workflows and protocols.
The simple answer is, “of course” and as commodities, their value is determined by the market.
It should come as no surprise that legal practice has changed dramatically in the past twenty years. However, a recent article (link below) in Washington Lawyer struck a shocked, revelational tone when describing both the temporary attorney market as well as the work usually performed by contract attorneys.
The context of the article ignores how the legal services industry has evolved in a few ways;
The practice of law increasingly bears little resemblance to our legal education and we should not assume that our only value is in “fighting the good fight” like Oliver Wendell Holmes or Clarence Darrow
The practice of law is driven by numbers (bill rates, BSR’s, realization rates, etc.) and a highly competitive market mixed with a challenging economy have been catalysts for increased focus on the business of law
The development of technology and resultant explosion of eDiscovery has forced law firms (hopefully) to rethink billing and value and strategically commoditize their services and portions of their workflow
Typically, contract attorneys are sourced to review documents as part of the discovery process. Although the work is seldom glamorous, it is an essential component to responding to subpoenas, developing case strategy, preparing for depositions and ultimately, understanding your client. No one is well-served by diminishing the importance of this function. However, as eDiscovery and technology evolves and firms and clients develop more cost-efficient strategies for review, contract attorney rates have slowly declined since 2008. The “throw bodies at it” approach is rapidly disappearing. In the same way that first-year salaries have stagnated or declined during the same period and bill rates are more frequently questioned by clients, temporary staffing has taken a hit as firms try and manage cost, competition and process while the market assesses value.
For attorneys joining or working in the temporary market, I would advise a better understanding of the broader eDiscovery sector. Flexing with the market, firms are continually evaluating their discovery resources and permanent positions (and comp) are evolving even more quickly than temporary roles. Although I appreciate the frustration caused by a “contracting” attorney market, it is critical to acknowledge that business decisions are driving the discovery environment. Within the world of document review, if anything, conditions have standardized and firms better understand how to manage the work. Comparisons made to partner compensation, stories waxing poetic about town cars and catered meals and complaints about access to personal technology are easy red herrings that reflect a complete lack of understanding regarding the modern business of law and its challenges.
The content of the article would have been pseudo-provocative in 2004. Ten years later, it is critical for practitioners, clients and vendors to understand that the legal market is transitioning into a services model (following accountancy, medicine, etc.) where value is proven and not assumed. As an industry, we need to reconsider how to assess value and resources and, to stay competitive, we are forced to modernize and adjust to market forces to stay relevant.
In 2007 I conducted complementary research projects that investigated the efficacy of data analytics and legal process outsourcing (LPO). For the firm, I concluded that neither was fully developed and that both resources were a bit of a “black box” as vendors were reluctant to divulge specific information. I vividly recall a number of conversations with providers that resulted in a confusing “Who’s on First” back-and-forth. In the past seven years, predictive coding has emerged from the darkness and we now better understand the components of its defensibility; how it works (algorithms), what it costs and where it succeeds. However, other than generic predictions of doom, the details of outsourcing aren’t really discussed in the community and until recently, I didn’t have much insight into the process and practice of LPO’s.
Legal Process Outsourcing (LPO) Market Analysis and Segment Forecasts To 2020 prompted this post and provides an interesting summary of the global LPO market. In the past year, by coincidence, I have had a number of colleagues gain considerable experience with LPO’s in India and, in turn, share their new expertise with me. What I’ve learned inspires an inherent philosophical question in eDiscovery; when the price is right, do we care about the process or just the results? A completely random sample of LPO’s paints the picture of organizations that are heavily staffed, tightly controlled and ultimately economical for clients. Their business models seek to exploit affordable labor while assuring quality work product through intricate, verifying processes. What I have learned (second-hand) about the LPO experience includes;
Low labor rates allow for a “throw bodies at it” approach that encourages long hours and large review teams.
Written and oral language barriers create internal communication issues and limit the nature of interaction between clients and review teams as well as amongst native review teams/project managers and western colleagues.
Substantive understanding of US law is minimal and, especially with privilege (which is always difficult to explain to non-western cultures), may require extensive training, orientation and QC.
To compensate for language and educational differences that may produce high first pass error rates, elaborate/sophisticated searching protocols are implemented to “steer” the review toward accuracy; essentially an iterative, manual process that mimics predictive coding.
As a result of extensive searching, accuracy rates in the final work product are very high.
To meet Safe Harbor requirements and to protect data privacy, LPO’s typically have elaborate control procedures to safeguard client information.
Market constraints in the States have forced efficiencies on practice affecting staffing, volume, process and timing and the quest for cost savings is motivating an evolution in practice management while creating the opportunity for legal process outsourcing. While US eDiscovery practitioners will look for input perfection at each stage, LPO’s seem to have created sophisticated ECA protocols along with review controls that seek to ameliorate input issues while focusing on the output. It is an exhaustive process that adjusts for the implications of location but that is both caused by and benefits from that location (foreign lawyers and low labor rates). For most firms, international outsourcing will be a sensitive and calculated decision (potentially motivated by a client) that depends largely on a comfort level with delegating control over the review process as LPO’s continue to be perceived as an unknown or “black box.”
Here Come the Robot Lawyers - By James O’Toole. It’s not often that eDiscovery is highlighted in mainstream media. CNN Money published this article referencing Winston & Strawn eDiscovery evangelist John Rosenthal and harkening the widespread adoption of predictive coding and its effect on the ranks of law school grads.
Machine Learning and Law - By Harry Surden. Technology is affecting the practice of law and its processes and this recent Washington Law Review article does a “deep dive” into the technology and its uses.
I would like to supplement the way that I present information on Inside eDiscovery with a new series entitled, Inside Focus. These posts will allow me to highlight specific eDiscovery subjects with bulleted lists of tips, suggestions, expectations and personal experience. I start the series with Foreign Language Document Review. eDiscovery that incorporates foreign language(s) is often challenging and expensive and it adds a layer of complexity that can overwhelm timelines, case teams, institutional resources and vendors. I have managed many foreign language matters (FCPA, IP and general cross-border litigation) and have acquired expertise where there isn’t necessarily guidance or support. The following topics are meant to serve as a high-level check-list of issues related to foreign language eDiscovery and review;
·Cost – Review in a foreign language is far slower, rates for multi-lingual reviewers are far higher and collection/processing issues are far more complex. These critical components to the eDiscovery process may double or triple the cost of English language reviews.
·Data Privacy/Jurisdiction – Privacy or other jurisdictional concerns may impact more traditional approaches to eDiscovery and require multi-jurisdiction review. Global partners (collection, processing, hosting, staffing, etc.) may be indispensable in coordinating international efforts.
·Language and Client – Collaboration with a foreign/international client is more important than with English-speaking clients during the eDiscovery process. A client’s language and business expertise is meaningful when developing search terms as well as understanding terms of art and proper nouns, etc.
·Management – Managing a foreign language review can be challenging if you are not language proficient because there will always be issues regarding verifying the quality of the work product. I recommend having a trusted resource to monitor the analysis or translation work. For large firms, you may have a language speaker in-house, the client may be a resource or staffing providers may have experienced language-specific project managers.
·Review Platforms – It is important to fully understand the capabilities and/or limitations with specific review platforms and your language(s). Specifically, it is important to verify how languages with non-English characters are treated (particularly Chinese, Japanese and Korean).
·Staffing – If you seek to employ multi-lingual review attorneys, it is critical to know their fluency and all candidates should be tested and you should know their fluency percentage. ALTA is a market leader in language testing and you may learn more at www.altalang.com. Under general circumstances, native speakers are preferred because they have broader cultural and business exposure.
·Technology – Emerging technology like machine translation (MT), machine learning and predictive coding may be powerful options for your foreign language matter. Predictive coding and automated translation tools are evolving and creating opportunities for efficiency. These tools, working together or separately, need to be thoroughly vetted and evaluated considering efficacy, product capability, cost and production requirements/agreements.
I have managed more than 2000 contract attorneys in my career and have learned quite a few lessons regarding hiring, orienting, supervising and maximizing temporary support within large law firms. Here, I conclude my Contract Attorneys A-Z series (Part 1 is available here and Part 2 here) with additional lessons, concepts and thoughts that seek to explore the character of the relationship between temporary attorneys and law firms. For this list, I assume that most contract attorneys are hired to assist with discovery-related projects.
Time Management – Hours billed on review teams should be strictly managed on a daily basis. In addition, the firm’s expectations on work hours and output should be presented during orientation and absences should be recorded to adjust productivity goals.
Unit – Contract attorney teams should function as a unit to encourage consistent analysis, productivity, fairness, etc. The hallmark of managing teams as units is uniformity. Information should be distributed at a unit level, issues should be addressed at a unit level, and individual problems should be sheltered from the whole to avoid distractions in close-knit working environments. Ideally, this approach develops solidarity and a morale built on equity and usefulness.
Veterans – It is significantly helpful for firms to maintain a database of employed contract attorneys that includes resume, conflicts information, rate, dates of employment and final assessment (the assessment should be shared with the staffing provider). Firms are usually benefitted from sourcing veteran candidates for new projects. They understand your environment, process, personality and expectations. One caveat…when comparing a veteran against a well-respected new candidate, make sure that the vet is truly a “super-star” and not just familiar and comfortable.
Woebegone – Contract attorneys are valuable components of the legal eco-system. However, the uncertainty and status of the position may create morale issues, especially over long-term projects. Although firms are not responsible for professional psychotherapy, I do think that it is important to address this cultural dynamic by involving them in your process, respecting their background and ability, sharing substantive information and, where possible, educating them on eDiscovery and the value it has in modern practice.
X-ray (I deserve a dispensation for this one) – Transparency is often challenging on large eDiscovery projects and especially with workers who are not permanent. However, I recommend sharing appropriate information regarding process, duration, issues, etc. with temporary attorneys. Foremost, it shows professional respect and creates a team-oriented morale. Secondly, for attorneys who work project by project, hour by hour, it allows them some degree of planning. These two factors will make your firm a desirable place to work and that benefits your client and work product.
Yahoo! – There is a perennial question about how much personal access contract attorneys should have to the internet (beyond a review platform) and to their personal devices. Confidentiality is an important consideration with allowing access. However, licensed attorneys have individual professional responsibilities and I think that it is appropriate to remind temporary attorneys of their commitment to their license. More broadly, I do not like to institute Draconian restrictions because I feel that it belittles an attorney’s professional status. However, rules should exist and be enforced and guidelines should be in place to control calls, browsing, etc. to respect review colleagues and the work.
Zeal – Conscientious and motivated contract attorneys are key resources for case teams. Review teams have first-hand, in-depth knowledge of your client’s data and I encourage case teams to utilize that expertise beyond pure review. I have enlisted contract attorneys to work on deposition preparation, case strategy, additional collections, privilege analysis, etc.
I have managed more than 2000 contract attorneys in my career and have learned quite a few lessons regarding hiring, orienting, supervising and maximizing temporary support within large law firms. Here, I continue my Contract Attorneys A-Z series (Part 1 is available here) with additional lessons, concepts and thoughts that seek to explore the character of the relationship between temporary attorneys and law firms. For this list, I assume that most contract attorneys are hired to assist with discovery-related projects.
Now - Marshalling resources for an eDiscovery project is complicated and timing usually suffers as decisions are made regarding collection, custodians, technology, vendors, staffing and substantive analysis. Many who sit outside the process question extended timeframes without appreciating the dynamics or logistics. Firms should have vetted best practices approaches to minimize extensions and temporary staffing should be prepared for a “now” mentality when component parts finally assemble and review is ready.
Orientation – I cannot overstate the importance of a substantive orientation for document review teams. Ideally, this includes an explanation of the legal framework of the matter along with pleadings if present, a robust summary of the factual context, a thorough discussion of the subpoena and/or review tags, relevant information about the client’s business and organizational structure and a custodian/players list that describes roles.
Privilege – Privilege analysis and review is often ignored until it reaches “necessary evil” status in the discovery process. Few attorneys (partners, associates, etc.) have comprehensive understanding of privilege and its assertion may differ dramatically from case to case depending on corporate structure, business practices, strategy, etc. The idea that there is one, universally accepted approach for identifying and asserting privilege is absurd. Firms should have partners and clients collaborate to develop an appropriate privilege “matrix” incorporating communication and work product documents and relay that decision-making to priv teams in detail.
Questioning – Document review is an iterative, organic process and at heart, it is an investigation. Daily team meetings with members of the case team, interspersed with opportunities to take advantage of an open line of communication allow for the essential back-and-forth flow of information. More than saying that questions are welcome, firms should provide teams the means and regularly (even daily) scheduled meetings are very important.
Rates – How law firms manage the cost of sourcing contract attorneys (absorb, pass along, bill to the client at a higher rate to accommodate administrative costs, etc.) varies greatly and has changed dramatically since the 2008-ish economic recession. Clients have also become more savvy and cost expectations more frugal. Firms should create contract attorney bill rate guidelines that provide a range of appropriate scenarios for recouping staffing costs that incorporates the possibility of overtime according to the local jurisdiction. A senior member of the case team should work with internal eDiscovery/review experts on each matter to verify firm expectations and the case team should establish an agreed rate with the client before any staffing.
Skill – I whole-heartedly believe that document review and contract attorney work is a learned/acquired skill bolstered by an inherent understanding of substantive categorization and analysis. I have managed many document review teams staffed by associates and I tend to find that they are not effective reviewers…that is not to say that they couldn’t be with more experience. When staffing your project, you should seek to know as much as possible about the candidates review experience and, where possible, avoid inexperienced reviewers.
I have managed more than 2000 contract attorneys in my career and have learned quite a few lessons regarding hiring, orienting, supervising and maximizing temporary support within large law firms. Here, I boil these lessons down to a succinct list of concepts and thoughts that seek to explore the character of the relationship between temporary attorneys and law firms. For this list, I assume that most contract attorneys are hired to assist with discovery-related projects.
Acclimate – If housed in your space, welcome and acclimate contract attorneys with a comprehensive tour of your office. Comfort with the work environment encourages concentration and focus.
Boundaries – Insurmountable boundaries (both physical and hierarchical) between contract attorneys and case teams may quickly destroy lines of communication and affect work product.
Co-employment – Contract attorneys who are sourced through staffing providers are employees of those agencies. Law firms and contract attorneys should always address issues regarding pay, hours, duration, workplace, etc. (all administrative issues) to the agency. It is critical to respect that employer/employee relationship and exploit the benefits of outsourcing.
Demonstrate – Technology and all required processes should be demonstrated during orientation. Never assume that a contract attorney has sufficient familiarity or experience with a review platform or a project-related process.
Experience – Successful experience as a contract attorney is usually the best indicator of success on your project. I have not found that law school, substantive practice experience, years of practice, etc. are compelling components of a review attorney’s credentials. Document review is a distinct skill and candidates should be screened for that expertise.
Fairness – Prior to hire, a plan should be developed for releasing attorneys based on objective criteria (workload, performance, aptitude, attitude, collegiality).
Goals – Project goals (hours, docs per hour, error rate) should be explicitly assigned and individual attorneys should be measured against them on a daily basis.
Holistic – Organizations should have a centralized, holistic process for screening, hiring and orienting contract attorneys. A centralized approach assures process consistency (billing, conflicts, hiring protocols, etc.) and it better positions an organization to negotiate competitive staffing rates across geographic markets.
Information - Contract attorneys are most effective when they are provided with as much case-related information as possible. Although some fear that “too much” information (pleadings, case strategy, etc.) may improperly empower and distract an attorney team, my experience has proven that supporting information provides context and direction.
Jurisdiction - The analytical work performed by contract attorneys requires that they be licensed in at least one jurisdiction and in some cases, in the jurisdiction which the work is performed (e.g. the District of Columbia).
Knowledge – During a document review, contract attorneys often become more knowledgeable regarding a client’s business than case teams. Case teams should exploit the factual expertise that contract attorneys acquire beyond tagged documents in a database.
Language – Foreign language reviews are increasing and attorneys with language skills are in high demand. When working with staffing providers, it is important to understand how agencies test for fluency (many use ALTA testing), whether candidates are native speakers and what their fluency score is. Native speakers are always preferred.
Memorialize – All substantive training, administrative guidelines, project expectations and any changes should be memorialized and distributed to contract attorneys. Clear instructions that outline an attorney’s work on your behalf are essential to delivering efficient, quality work product.
The global marketplace and increased international business exposure are catalysts in the growing instances of Foreign Corrupt Practices Act (FCPA) investigations and prosecutions. In plain terms, the FCPA is fashionable. A side effect of this growth is the explosion of international eDiscovery and the complications that follow suit…data privacy concerns, collection issues, experienced cross-border vendors, the challenges of foreign language review as well as sophisticated technology and workflow processes.
A recent report by the Texas Public Policy Foundation (https://www.texaspolicy.com/press/tppf-releases-reforming-foreign-corrupt-practices-act) explores the substantive issues with interpreting the Act and doing business in culturally-different jurisdictions. In addition to addressing the overall ambiguity in assessing business practices in other countries with a “blunt Western sword,” it also cites lost corporate opportunity as a secondary implication of the Act.
I continue to believe that FCPA-related discovery presents a huge opportunity for law firms and eDiscovery vendors because few providers or firms are effective/efficient resources for clients defending against anti-bribery charges. However, what is an opportunity for legal services is a huge drain on corporate legal departments and that should be a component of the conversation evolving in media recommending changes to the Act.
As legal practice and jurisprudence strive to balance litigation with fairness, remuneration and social/business integrity (e.g. history behind the amendments to the FRCP), current analysis has failed to consider the significant discovery costs associated with FCPA investigations. Carter-era macroeconomics was defined by a much-changed playing field where American, global, corporate giants could dramatically impact the intersection between mercantilism and diplomacy. Similarly, discovery requirements and costs have exploded in the past 20 years. Acknowledging the anti-American effect of bribery, FCPA investigations may need to evolve to “judiciously” balance cost, impact, fairness and economics.
The frenetic and pervasive development of eDiscovery has perennially raised the question of whether eDiscovery practitioners must be attorneys. In my mind, eDiscovery is as essential to the practice of law as procedure and I think that there are a number of misconceptions that prevent eDiscovery from appropriately integrating into legal practice including;
Technology is not lawyerly nor legal substance,
Managing the strategy of process isn’t billable,
eDiscovery is an issue of cost and is a commodity and therefore, not legal advice,
Law firms continue to be “services” adverse.
In this series of posts, I would first like to explore how eDiscovery is pushing practice of law issues. In an ever-complicated environment of legal services, jurisdictions first addressed practice of law and eDiscovery with respect to the use of contract attorneys and document review. I will argue that TAR, predictive coding and automated review have not changed the value of a well-trained, competent contract attorney. Every jurisdiction in the United States has acknowledged that review is an analytical, legal process that, on a document-by-document basis, solicits and generates legal advice. Ever on the forefront of eDiscovery, the District of Columbia Bar has moved to require DC Bar admission to work as a contract attorney in the District as it impacts practice management nationwide.
In my related posts, I will explore how jurisdictions and the ABA Model Rules continue to evolve what is considered to be standards of practice and how those best practices are engendering change in the eDiscovery industry. Specifically, elements of discussion will include;
The value of temp attorneys and the Quinn Emanuel defensive “dance”
Paralegals and document review
How do practice of law issues affect your strategy?
ABA Model Rules and the big picture
Large law eDiscovery infrastructure
Through each of these posts I hope to emphasize the integrity that a well-credentialed, experienced, and collaborative attorney and staff team-oriented approach brings to bear as any firm/lawyer seeks to serve client needs.
Jackson Palmer is a dynamic and creative eDiscovery attorney with 14 years experience working in large law firms managing the EDRM process. Jackson has extensive experience and interest in integrating technology and emerging eDiscovery jurisprudence/standards with organizational structure, process best practices and developing the human component of successful strategies for data management.