Your law firm contracts with a vendor, but your attorneys are going off the reservation

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Image courtesy of keepcalm-o-matic.co.uk.

Many law firms, especially large ones, contract with service providers to either outsource e-discovery work or to provide managed services — meaning, the vendor dumps its software and/or hardware on the firm’s premises and offers “on-call” project management, consulting and other assistance. In other instances — most prevalent within the upper tier of the AmLaw 200 — the firm has built an entire in-house business operation to handle the e-discovery projects of its clients.

Any of these arrangements requires a significant upfront investment, but they can pay dividends in the long run — if the people actually calling the shots when a discovery matter arises use these services.

And that is a huge if.

Attorneys tend to do their own thing. It’s an eat-what-you-kill world. Discovery is no exception.

We spoke to a principal at a prominent consulting firm yesterday who had just finished surveying 15 firms to identify trends in law firm e-discovery strategy. This person said that, while the majority of those firms brought e-discovery in house in one way or the other, many had trouble getting firm partners to actually use those tools or services.

There are a number of reasons for this:

1. The technology is too complicated

Or it doesn’t work, or it takes too long to learn, or it takes too long to use. This could be a failing of the vendor’s technology. It might have a complicated user interface, or require special credentials or licenses just to log on. The collaboration features might be wonky, etc. It might just look intimidating. But it could also be a shortcoming of the firm’s internal practice support staff, who is generally responsible for assuring attorneys and other firm personnel are properly trained on new technologies.

2. Firm culture and attitude 

The thinking here is that attorneys — and here come a series of gross generalizations — by and large thumb their noses at e-discovery. Especially lawyers of a certain generation. They didn’t suffer three years of law school and a grueling associate apprenticeship to sit behind a computer all day sifting through emails. And they damn sure don’t care what e-discovery services are available to them internally. When it’s time to deal with e-discovery, they’ll deal with it — on their own terms.

Some say this ad hoc approach is just a symptom of how some law firms operate.

One prominent New England-based attorney, formerly of a major law firm, put it this way:

“No one runs a law firm. A law firm is a group of lawyers operating independently under a marketing name.”

To be perfectly clear, there are many, many lawyers who care very much about e-discovery — because they know it’s often the most expensive part of litigation and incredibly risky if approached casually, but, if performed with skill, can give tactical advantages. We work with a lot of them. They care about delivering value to their clients.

Still, it is incumbent upon practice support or whoever “owns” the e-discovery process (maybe it’s an outside provider) to clearly convey to the powers that be a) the benefits of the e-discovery services and why they were brought in-house b) what services and/or technology are available and what advantages they can deliver and c) how they work.

3. Vendor availability

In short, the aforementioned “on-call” support staff isn’t available for one reason or the other. The attorney finds someone with more bandwidth — or, at a smaller firm, maybe something she can do herself.

4. Lack of awareness and logistical hurdles 

See point 2. And also consider that the largest law firms are sprawling operations spread out all over the world. Baker & McKenzie, to pull a name out of a hat, has 77 offices dispersed across 47 countries. Think about the marketing and outreach exploits it would take to get every member of the UN to order from the same Chipotle in Dallas. That’s what it’s like to gather firm consensus around a single discovery platform or provider.

Firm-wide e-discovery training may also be infrequent. The head of the e-discovery practice at an AmLaw 20 firm told us voluntary, hour-long CLE-type sessions are held twice a year to review best practices and the firm’s policies.

Then there’s the issue of logistics. The relatively limited access most discovery platforms offer would require time-consuming (and risky) shipping of physical media or bandwidth-sucking transfers to get data collections where they need to go for processing, culling, reviewing, etc.

5. Clients are demanding something else 

And then there’s the fact that, more and more often, it’s the clients that are calling the shots — dictating to the firm what discovery tool must be used, sometimes because the client has contracted with or uses (or has built) a go-to tool of its own. This was a major finding of the Norton Rose Fulbright annual litigation trends survey, which we wrote about earlier this week. Some companies even have riders in their agreements with outside counsel that specify the platform that must be used.

Still other attorneys might find a better, more predictable discovery arrangement for their clients than what their firm can provide. And good on them.

Robert Hilson is a director at Logikcull. He can be reached at robert.hilson@logikcull.com.