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.
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