I spend a good deal of time traveling around the country working with firms on training, and one of the most consistent flaws I see in litigation practices is the failure to create a team approach to discovery. Creating a team approach that leverages the skills of everyone — whether partner or associate, litigation support professional, paralegal, technologist, or project manager — is the most cost-effective approach to dealing with the discovery of ESI. And it’s the best way for lawyers to get what they need in discovery faster.
I don’t think anyone — especially those who’ve lived in it — can ever really understand the strange people dynamics that exist in law firms. There seems to be an invisible wall between lawyers and staff members — whether the staff member is the Chief Marketing Officer or the Project Manager in Litigation Support — and the two are practically separate castes. You know what I’m talking about. I never understood it, but maybe that was because I was blessed with the best assistant ever and I felt like it wasn’t worth going to the office if she wasn’t going to be there. She was such an important part of my team that I couldn’t get things done without her.
That invisible wall is preventing you from doing the best job you can do for your client. Here’s why.
As lawyers, your job is to think. To strategize. To plan and to execute on the plan. Every lawyer struggles mightily with being able to stay focused on the key facts and issues and not be distracted by noise in a case. And that noise is most often all of the information we receive in discovery. How many times have you thought this: If someone could just filter through the noise and get me The Good Stuff — the documents that I need for the case — and I could forget about the noise, my job as a strategist would be so much easier? If that was the case, you could spend the time on the facts, talk to experts, strategize, etc., instead of focusing on documents that don’t have any value. There’s a concept.
But here’s the rub: because you’re the strategist, you have to be involved in figuring out what to look for. And I don’t just mean the associates, I mean you, the Chief Strategist for the matter. Your input on what is important for discovery has to guide the entire process.
Litigation support professionals know technology. They know what’s hard about getting data from certain sources, and they know how to use the technology they have to get to what you need and organize it how you need it — if you tell them what you need.
Most of the lit support folks I talk to will say that they can add significantly more value to matters that they work on, but the lawyers won’t talk to them about the case — they just issue orders of what they want. If that’s what you’re doing, you are paying for professionals that you aren’t using effectively and you’re missing out on real value for your clients.
Here’s the solution — identify what you need as a team, and then let your team members help you get from the noise to The Good Stuff. They want to help you — they really, really do — and they bring more to the table than you are seeing because you won’t let them sit at the table.
This approach involves a team meeting at the outset of the matter to discuss the scope of what is needed in discovery — custodians, date ranges, sources of ESI, key facts to prove/disprove elements of each theory of liability and where to find them, roles for the matter, what to be collected, etc. Discuss what you need to prove and brainstorm about where to find it.
(Note: having a team that has worked with a client multiple times provides great insight into how that client uses and stores information that will be of tremendous help when creating a narrowly crafted discovery plan.) When your entire team is on the same page about what the case is about and what you are looking for, they can each leverage their skills with strategy or technology to get to The Good Stuff.
I still see litigation support departments using detailed checklists to identify sources of ESI at a client without knowing which of those sources may actually be important in the litigation. Instead, have your litigation support/ediscovery group members sit with you, the Chief Strategist, on a call or during custodian interviews while you talk to the client and the custodians about what data sources are implicated. Use the same checklist, but make it a more targeted conversation that you can then strategize with at the same time. In my experience, the majority of the decisions that allow for cost control and targeted discovery are made during the custodian interviews and looking at data samples. You’ll make better decisions with your combined knowledge of strategy and technology, and you need your team members to provide input.
Mobile devices are a great example of why this approach is key. As the lawyer who signs the responses to the RFP’s, you are certifying that you are producing all of the responsive data. When you interview that custodian and ask about their mobile device, you can make a determination whether the data on the device is (1) relevant, (2) reasonably accessible from another source, and (3) necessary for preservation and collection. Treatment of mobile devices in early meet and confers is key because those costs and the variety of data sources from them can get out of hand quickly. Talk to the custodians and find out how they use them and what they know about how the key witnesses on the other side use their devices — they know, but you have to ask. All of those things inform your strategy on what to ask for, and your lit support team who will go and get the data need to understand the thought process.
The team approach also allows you to collect from just the sources you need using the specific date ranges that matter for a case. Not sure what that date range should be? Let the associate or the litigation support folks work with the client to review samples of data to narrow the window. All too often, I see an extra year to five years of data being requested by firms that has no real value to a matter and is never touched, yet hundreds of thousands of dollars go into handling the data. A few hours spent reviewing the data outside the range helps you focus. Another noise elimination step.
To engage with the team approach, you’ll have to address the upfront cost that clients are often against — multiple people from a firm meeting together to discuss a case. Address it head on and tell the client that at the outset of the case here is the approach and why you will see meetings for several people at once. The ROI will be 10:1 over the cost of those meetings when you can focus faster and bring about a better result for your client. Of course, if you are one of the many firms working hard to engage in flat fees or reduced rates for your clients, the team approach will be vital.
So, drop the wall. Mexico isn’t paying, and your clients don’t want to either. Most lawyers have a great team behind them. The best lawyers use their teams effectively.
Kelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant — an online eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at [email protected] or on Twitter: @kellytwigger.
