The quarterly publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/11430
inside any company doing business in the U.S. Certainly CLOs are concerned, but so too are CEOs, CFOs and board members. The costs of resolving even ordinary business disputes are now so high as to fundamentally change the way companies are doing business. The firms that will do best in the coming decade are those who place this concern square in their sights. And the payoff? Almost certainly the payoff will be still more demands for comparable innovation and process improvement, but the firms to whom those demands will be made will be the survivors, the thrivers and the champions. Waging Battle on Multiple Fronts The problem will not yield easily. It has to be attacked on many fronts. A starting point will be to examine every “given” in the current approach. Why, for example, is it necessary to review all of Smithers’ e-mail messages? There are legal techniques available to contain the review, and firms likely to succeed in the coming decade will already have mastered them. Pre-Culling Tools: Technologies that can facilitate the early exclusion of irrelevant or non-responsive documents from the review process, without the need for human review, exist today. There are several recently emerged approaches, and it would not be unusual, using even the most basic of such approaches, to reduce the volume of documents to be reviewed by 50 percent or more. Interestingly, in-house legal departments have been more aggressive at using such pre-culling tools than have law firms. Vendor-supplied pre-culling solutions are multiplying rapidly as well. Law firms are lagging behind in adopting this innovation. The reason, perhaps, is the innate conservatism of lawyers, but a number of clients think it is reluctance on the part of law firms to forego the cash stream that ensues from pervasive review of collected documents. The seed of distrust has been sewn in this market. Firms need to address that distrust. Even with such tools and aggressive legal techniques to reduce the number of documents requiring review, e-discovery costs remain out of scale. Let’s assume, for example that, in addition to Smithers, just three other Springfield NPP executives’ documents must be reviewed and that half of their documents can be “culled” prior to review. The total cost using conventional review techniques would still be over $2 million. Staffing Costs: Because of such costs, a number of law departments have not left the management of e-discovery issues to chance. They have increased litigation management staff and invested capital in such things as pre-culling tools precisely because law firms have 50 www.iltanet.org Peer to Peer been slow to take measures to reduce e-discovery costs. The emergence of online alternatives was a key factor in the undoing of newspapers. It may be that, over the course of the next decade, the “in-sourcing” of e-discovery tasks becomes a threat of comparable magnitude to law firms. Another fundamental question concerns the $300-an-hour associate. Must document review be done by people paid at the same levels as senior business executives? Clearly, skill is required to review documents, but firms can refine their staffing models to shift some of that work to less expensive workers and to less expensive geographies, whether a Midwest suburb or a subcontinent. Again, firms that are likely to thrive have already begun to go down this road. Here again, companies are not leaving the matter to chance. Some have outsourced document review to companies, on- and off-shore, to reduce the per-unit costs of document review. This is both evidence of disaffection with the traditional law firm model and evidence of an “action-bias” that mimics that of news consumers and advertisers of the last decade. News consumers and advertisers voted with their feet, not with their words. Doubtless, many law departments now considering radical ways to reduce document review costs are still “making nice” to their law firms. But firms cannot rely on a pleasant relationship to retain business that otherwise is not cost-effective for the client. People vote according to their economic interests, and they often do that with their feet. Workflow and Quality Assurance: The workflow of today’s document review still has many of the attributes of the paper- based process. Two or three decades ago, workflow management in law firms entailed a partner descending some number of floors in the elevator, finding a seldom-visited “work room,” opening the door and saying to the young lawyer huddled over documents spread out on a folding table and surrounded by bankers boxes of still more documents, “How goes it?” Regardless of the response that ensued, the partner did not dwell long, and the young lawyer was left to his life amidst the reams. While the paper document reviews of yore were voluminous, today’s review tasks defy the imagination. The volumes are greater by orders of magnitude than those in the paper days. Document review simply begs for modern workflow streamlining, and this situation offers many leadership opportunities for litigation management and technology leaders. How might a firm monitor, refine and optimize document review workflows? We see many examples of more difficult tasks being managed this way in industry. How do we imagine a skyscraper comes together, or a transport aircraft, or an ocean-going ship? Does an executive drive up in a limo and ask “How goes it?” No. Law firm clients run businesses that attend to process workflows to an extraordinary level of detail. Over the last two or three decades, many companies have formalized the processes of designing, documenting