The quarterly publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/43128
Law Clerk 2.0: Evolving from Document Managers to Case Managers benefits. In this sense, their interests are aligned to those of the firm. Be proficient, take a defensible and strategic approach, but don't take on functions outside of your core competency. The Missing Link to Litigation Support Some would argue that while law clerks have, in many cases, become the owners of technical expertise on litigation support applications, they are not the masters. To this point, most law clerks hit the proverbial wall when they are required to speak to and administer the nuances of various technologies such as metadata, relational databases and cloud computing. As law clerks begin to move in the direction of the litigation support professional arena, various other issues arise: • Unchartered Territory: A key issue from this more technology-oriented approach to cases is how to manage billable hours. While some newer tasks can be aligned to traditionally billable ones (e.g., tabbing of documents vs. unitizing of document sets), others bleed into traditional IT tasks (e.g., database maintenance), which clients often see as an implicit part of the service offering, not a billable function of legal professionals, especially when billed at the rate of a law clerk. Michelle Nash, Owner and Lead Consultant at M Nash Consulting in Toronto, is a seasoned law clerk who branched out on her own 18 years ago as a litigation support consultant. Nash views it as a necessity that law clerks develop a much broader skill base in order to continue to be paid their hourly rate. "Law clerks need to be tech-savvy, as lawyers often aren't. For example, when a law clerk retains an outside vendor, she needs to be an informed consumer. She also needs to know what is happening in the corporate world and private sector to dissect what is going on — how they use BlackBerry devices and whether they use Facebook. It is such a broader world than it was before. If you aren't aware of these types of things, you are not even in the market." • A New Ecosystem: One of the dangers of the "self- taught" epidemic that exists within this group is that many professionals don't know what they don't know. An associated challenge relates to the fact that many litigation support operations are home-grown and have been developed rather "organically" based on the requirements of a few significant cases and through the efforts of a few key personnel. Today, proactive firms are looking to formalize these structures by clearly defining the threshold for in-house capabilities and expertise, aligning to those of external resources where needed. In doing so, they are empowering teams to operate in a defensible, cost-effective manner through clearly defined practices. • Two Roles, One Person: One mistake law firms often make is trying to incorporate the litigation support role into that of the traditional law clerk, thereby asking individuals to wear two hats. Doing so often creates a poor service-level experience with the litigation support area, a reduced level of empowerment of key personnel and the inability to centralize evidence management practices. This type of setup also tends to coincide with a fragmented relationship between the practice group and IT. In order to promote their success, it is critical that litigation support personnel are supported by a formal mandate that funnels all projects directly through them and provisions a mechanism for the necessary support, either by internal or external providers. • Competition for Advancement: One of the key challenges for individuals seeking advancement is the traditional view of the law clerk role that is held by lawyers. Many law clerks find that they will not be officially recognized for their knowledge, proficiency and vision unless they move to another firm. This tactic often aids in overcoming old stigmas around their contribution vertical and, when the gap that's left is eventually noticed, the departed firm often posts a now formal position for the very capabilities it once had. A related challenge firms are facing is the absence of qualified personnel in the marketplace and the level of competition that is arising around recruitment initiatives. • Limited Access to Resources: Even when law clerks are in tune with their evolving needs, they are often challenged to get the tools they need to perform optimally; furthermore, they are not usually in a position to make requests for capital expenditures on hardware, software and the like. Unless an urgent task on a specific case warrants the investment and the individual lawyer can see an immediate return or opportunity to disburse the cost to the client, firms are not likely to invest. Centralized procurements will become more common as e-discovery/technology committees become a staple of business operations. • Nature vs. Nurture: Another key cultural challenge is the fact that the legal profession is not a teaching profession; nor is it intrinsically team-oriented or collaborative. Case in point: knowledge management initiatives can be particularly challenging in law firms where individual practices' tacit legal knowledge and e-discovery know-how are so nuanced, particularly in combination. Unlike the accessible canon of case law that exists today, mastery of both disciplines relies extensively on experience, with subtle shifts in context weighing in heavily on critical case decisions. From this perspective, a seasoned law clerk becomes an invaluable resource, but one that's difficult to replicate through conventional educational methods. Law clerks are rapidly becoming permanent students and lifelong learners of technology. Where traditional colleges are unable to offer up-to-date educational (technology) programs to professionals in the field (and would likely have difficulty maintaining them), professional associations and industry groups are gradually fulfilling the professional development Peer to Peer the quarterly magazine of ILTA 81