Let Litigation Support Take Charge

Every law firm has its own personality and culture, often with people who have been there for 10, 20, or more years. In this sort of environment, instituting a new system can be difficult, if not impossible. However, the current state of the litigation support department in most law firms, if one exists at all, could do with a complete overhaul in order to deal with the various discovery needs and Federal Rules of Civil Procedure ('FRCP') changes associated with the average case. Most attorneys have neither the time nor the interest in distinguishing between single versus multi-page .TIFFs; they simply want to start looking at those images. However, seemingly minor considerations can significantly impact cost and speed throughout the entire case lifecycle. Who can take ownership of this type of technical consideration, thereby leaving attorneys and paralegals to the law?

Major issues in litigation support work boil down to work flow and delegating authority. Litigation support manages all the discovery projects, database administration and data analysis work; often, this work is done in an ad-hoc manner, and has no real defined procedures or methodology. That type of 'system' is management by abdication, not delegation. Legal teams and vendors routinely make technical decisions without the involvement of the litigation support department. The results include delays and higher costs for productions as litigation support performs avoidable work, such as modifying vendor deliveries that will not work on firm systems.

Whether there are 10 litigators or 1000, a law firm must implement a consistent and unified approach to the project management, processing and storage of all discovery or drown in the very data the clients and vendors generate. Historically, one lawyer could literally swamp another in paper and thereby push for a settlement. Today, the recipient of one banker box of electronic discovery can spend years looking through ESI documents and categorizing them ' assuming that: 1) the client can afford to turn that discovery into a reviewable database; and 2) the technical character of the vendor delivery is compatible with that of the firm.

This article identifies select law firm issues that can significantly impact cost and speed throughout the entire case lifecycle, and offers viable solutions to dealing with them.

Decisions, Decisions

The first question is whether the firm's litigation support department receives vendor deliveries that require additional and avoidable work.

There are a number of case-level decisions that should be made by or available to litigation support, such as mandating the outsourcing of work, establishing a firmwide technical standard, restricting work to specific vendors, routing specific litigation goods and services through litigation support and limiting software use to specific titles. Obviously, the department will require the authorization by managing partners and marketing savvy.

These decisions may also affect how litigation support works with other departments, such as accounting. Situations may arise where decisions may effect the actions of legal staff. Due to hierarchy, litigation support persons can not tell the attorney how to litigate a case, but they should be able to mandate that technical decisions meet accepted firm standards. Here is a short list of political abilities. Note the value of each, whether your department is able to wield such power and how it would affect everyone.

1. Ability to Outsource New or Legacy Work.

The department needs to self-regulate its work level. Litigation support should decide what and when to outsource due to the risk, complexity or scale of discovery in a case, or simply due to scheduled upcoming projects.

Litigation support needs to be able to shift projects to vendors for the sake of all existing projects. This is a matter of knowing what the department can do, what is best for the case and the impact on other matters. Vendors routinely outsource work. They subcontract that work which they either cannot, or should not, perform internally. They still perform project management and check the results for quality. It is in the firm and attorney's best interest that litigation support be able to do the same.

In such circumstances as when litigation support cannot persuade a legal team toward an appropriate course of action, the clout to force these decisions should come from firm management.

2. Establish a Firmwide Litigation Technical Standard.

Every attorney and paralegal knows the purpose of a Bates prefix. Imagine if each new collection for every client-matter were assigned the same prefix of either 'VOL' or the name of the vendor. Now imagine that the first page were always stamped '1,' or '0000001,' without the prefix. Each year the attorneys will have hundreds of collections named 'VOL' that contain pages stamped '1,' '2' and so forth. This would be unthinkable and unacceptable. Unfortunately, this is a common problem that the litigation support department faces on a daily basis as CDs and .TIFF images arrive in this exact fashion.

The law firm contracts with litigation technology goods and services vendors to create products such as a database with images. The resulting product should take a minimum of time and technical prowess to load and use. The best way to do this is to establish and publish a firm-wide litigation technical standard.

A firm-wide standard is especially helpful if your firm is large enough to have multiple offices and departments. If non-litigation support persons can contract any vendor without input from litigation support, then a firm-mandated technical standard will save hours of needless labor.

The mandatory inclusion of this document with every project ensures vendor product will match firm technical requirements. For law firms where the attorneys and paralegals may contract discovery services without the involvement of the litigation support department, this is a critical step toward the elimination of unnecessary technical work.

In some firms, the legal team may not automatically include the litigation support department. The FRCP changes, along with accepted industry publications should be argument enough to win the support of the CIO, Head of Litigation and, ultimately, Managing Partners toward the inclusion of litigation support.

3. Routing Discovery Vending Through Litigation Support.

In firms with an accounting department, it would be hard to imagine that an attorney or paralegal would contract an outside accounting vendor, and then have the internal accounting department use the vendor's work product for all firm accounts receivable ('AR') and accounts payable ('AP') needs. Yet, this is the same situation most litigation support departments face. Although the field of accounting has standards and certifications to ensure that work product one accountant creates can be used by another, the field of electronic discovery has no such luxuries ' at least not yet. At some firms, paralegals and attorneys select the last vendor to give them chocolate chip cookies (or at least it seems that way). The right roles should be responsible for making their appropriate and crucial decisions. There is a solution: Route all discovery vending through the litigation support department.

It should be noted that when a firm institutes and publishes a firm technical standard, it can then prequalify vendors using that document. So long as the choice is limited to qualified vendors, the attorneys and paralegals that wish to vend discovery directly should not pose any significant problem for the firm or department. Either way, all electronic discovery should still, physically, go to the department for duplication (never send the originals to the vendor) and inventory.

4. Restrict Software Use to Select Titles.

It is hard to imagine a single case where the legal team would use two programs for storing transcripts, three for document review, two for word processing, two for e-mail and another two for deposition and trial exhibits. This would create a lot of confusion for the legal team. It also creates a myriad of problems for the litigation support department and vendors.

Even those law firms that use a single program for storing transcripts may employ a different application from one case to another. This creates many of the same problems as when using redundant software titles on the same matter, although to a lesser degree. Independent of input from the litigation support and IT departments, some attorneys may even purchase solutions that duplicate existing software but are limited in some significant fashion, such as the ability to export data to other programs. In these unfortunate circumstances, litigation support's first project may be the migration of the new database into a software title that the firm supports.

The law firm, through firm-wide standardization on software titles, removes a level of complexity for support, the vendors and the end users. Everyone need only be expert in a single title, not several. Litigation support may select from a wider variety of vendors, as the technical requirements are simpler. Finally, the end users enjoy a consistent software experience from matter to matter and collection to collection. Any learning curve on the part of the litigation support department, vendor or legal team member is an impediment to speed and a successful litigation.

This sounds good in theory until a 'rainmaker' partner prefers some obscure title. That is when the litigation support department requires the backing of firm management to win the case for standardizing on titles and eliminating duplicate products.

Conclusion

A firm is a business. As such, accounting reports provide the foundation for making business decisions. Litigation support's time and litigation goods and services should be tracked. The first step for many firms is to identify which cost codes the accounting department currently enters for electronic discovery and the other mentioned services. If accounting includes the cost for electronic discovery with legal research, as example, the firm has a skewed vision of expenses in the practice.

Once firm management has a clear understanding of how the updated FRCP changes and current operations directly impact both case and firm, it should be ready to take an active hand in changing firm culture, instituting standards and making certain everyone delegates the appropriate responsibilities to the correct roles.

Part Two will cover in-house versus outsourcing strategies for paper and electronic discovery. Every firm, regardless of size and internal capabilities, should have external partners for collection, processing, hosting and production. The reasons for this include risk management, working with co-counsel and trying new review platforms without impacting internal operations.

Every law firm has its own personality and culture, often with people who have been there for 10, 20, or more years. In this sort of environment, instituting a new system can be difficult, if not impossible. However, the current state of the litigation support department in most law firms, if one exists at all, could do with a complete overhaul in order to deal with the various discovery needs and Federal Rules of Civil Procedure ('FRCP') changes associated with the average case. Most attorneys have neither the time nor the interest in distinguishing between single versus multi-page .TIFFs; they simply want to start looking at those images. However, seemingly minor considerations can significantly impact cost and speed throughout the entire case lifecycle. Who can take ownership of this type of technical consideration, thereby leaving attorneys and paralegals to the law?

Major issues in litigation support work boil down to work flow and delegating authority. Litigation support manages all the discovery projects, database administration and data analysis work; often, this work is done in an ad-hoc manner, and has no real defined procedures or methodology. That type of 'system' is management by abdication, not delegation. Legal teams and vendors routinely make technical decisions without the involvement of the litigation support department. The results include delays and higher costs for productions as litigation support performs avoidable work, such as modifying vendor deliveries that will not work on firm systems.

Whether there are 10 litigators or 1000, a law firm must implement a consistent and unified approach to the project management, processing and storage of all discovery or drown in the very data the clients and vendors generate. Historically, one lawyer could literally swamp another in paper and thereby push for a settlement. Today, the recipient of one banker box of electronic discovery can spend years looking through ESI documents and categorizing them ' assuming that: 1) the client can afford to turn that discovery into a reviewable database; and 2) the technical character of the vendor delivery is compatible with that of the firm.

This article identifies select law firm issues that can significantly impact cost and speed throughout the entire case lifecycle, and offers viable solutions to dealing with them.

Decisions, Decisions

The first question is whether the firm's litigation support department receives vendor deliveries that require additional and avoidable work.

There are a number of case-level decisions that should be made by or available to litigation support, such as mandating the outsourcing of work, establishing a firmwide technical standard, restricting work to specific vendors, routing specific litigation goods and services through litigation support and limiting software use to specific titles. Obviously, the department will require the authorization by managing partners and marketing savvy.

These decisions may also affect how litigation support works with other departments, such as accounting. Situations may arise where decisions may effect the actions of legal staff. Due to hierarchy, litigation support persons can not tell the attorney how to litigate a case, but they should be able to mandate that technical decisions meet accepted firm standards. Here is a short list of political abilities. Note the value of each, whether your department is able to wield such power and how it would affect everyone.

1. Ability to Outsource New or Legacy Work.

The department needs to self-regulate its work level. Litigation support should decide what and when to outsource due to the risk, complexity or scale of discovery in a case, or simply due to scheduled upcoming projects.

Litigation support needs to be able to shift projects to vendors for the sake of all existing projects. This is a matter of knowing what the department can do, what is best for the case and the impact on other matters. Vendors routinely outsource work. They subcontract that work which they either cannot, or should not, perform internally. They still perform project management and check the results for quality. It is in the firm and attorney's best interest that litigation support be able to do the same.

In such circumstances as when litigation support cannot persuade a legal team toward an appropriate course of action, the clout to force these decisions should come from firm management.

2. Establish a Firmwide Litigation Technical Standard.

Every attorney and paralegal knows the purpose of a Bates prefix. Imagine if each new collection for every client-matter were assigned the same prefix of either 'VOL' or the name of the vendor. Now imagine that the first page were always stamped '1,' or '0000001,' without the prefix. Each year the attorneys will have hundreds of collections named 'VOL' that contain pages stamped '1,' '2' and so forth. This would be unthinkable and unacceptable. Unfortunately, this is a common problem that the litigation support department faces on a daily basis as CDs and .TIFF images arrive in this exact fashion.

The law firm contracts with litigation technology goods and services vendors to create products such as a database with images. The resulting product should take a minimum of time and technical prowess to load and use. The best way to do this is to establish and publish a firm-wide litigation technical standard.

A firm-wide standard is especially helpful if your firm is large enough to have multiple offices and departments. If non-litigation support persons can contract any vendor without input from litigation support, then a firm-mandated technical standard will save hours of needless labor.

The mandatory inclusion of this document with every project ensures vendor product will match firm technical requirements. For law firms where the attorneys and paralegals may contract discovery services without the involvement of the litigation support department, this is a critical step toward the elimination of unnecessary technical work.

In some firms, the legal team may not automatically include the litigation support department. The FRCP changes, along with accepted industry publications should be argument enough to win the support of the CIO, Head of Litigation and, ultimately, Managing Partners toward the inclusion of litigation support.

3. Routing Discovery Vending Through Litigation Support.

In firms with an accounting department, it would be hard to imagine that an attorney or paralegal would contract an outside accounting vendor, and then have the internal accounting department use the vendor's work product for all firm accounts receivable ('AR') and accounts payable ('AP') needs. Yet, this is the same situation most litigation support departments face. Although the field of accounting has standards and certifications to ensure that work product one accountant creates can be used by another, the field of electronic discovery has no such luxuries ' at least not yet. At some firms, paralegals and attorneys select the last vendor to give them chocolate chip cookies (or at least it seems that way). The right roles should be responsible for making their appropriate and crucial decisions. There is a solution: Route all discovery vending through the litigation support department.

It should be noted that when a firm institutes and publishes a firm technical standard, it can then prequalify vendors using that document. So long as the choice is limited to qualified vendors, the attorneys and paralegals that wish to vend discovery directly should not pose any significant problem for the firm or department. Either way, all electronic discovery should still, physically, go to the department for duplication (never send the originals to the vendor) and inventory.

4. Restrict Software Use to Select Titles.

It is hard to imagine a single case where the legal team would use two programs for storing transcripts, three for document review, two for word processing, two for e-mail and another two for deposition and trial exhibits. This would create a lot of confusion for the legal team. It also creates a myriad of problems for the litigation support department and vendors.

Even those law firms that use a single program for storing transcripts may employ a different application from one case to another. This creates many of the same problems as when using redundant software titles on the same matter, although to a lesser degree. Independent of input from the litigation support and IT departments, some attorneys may even purchase solutions that duplicate existing software but are limited in some significant fashion, such as the ability to export data to other programs. In these unfortunate circumstances, litigation support's first project may be the migration of the new database into a software title that the firm supports.

The law firm, through firm-wide standardization on software titles, removes a level of complexity for support, the vendors and the end users. Everyone need only be expert in a single title, not several. Litigation support may select from a wider variety of vendors, as the technical requirements are simpler. Finally, the end users enjoy a consistent software experience from matter to matter and collection to collection. Any learning curve on the part of the litigation support department, vendor or legal team member is an impediment to speed and a successful litigation.

This sounds good in theory until a 'rainmaker' partner prefers some obscure title. That is when the litigation support department requires the backing of firm management to win the case for standardizing on titles and eliminating duplicate products.

Conclusion

A firm is a business. As such, accounting reports provide the foundation for making business decisions. Litigation support's time and litigation goods and services should be tracked. The first step for many firms is to identify which cost codes the accounting department currently enters for electronic discovery and the other mentioned services. If accounting includes the cost for electronic discovery with legal research, as example, the firm has a skewed vision of expenses in the practice.

Once firm management has a clear understanding of how the updated FRCP changes and current operations directly impact both case and firm, it should be ready to take an active hand in changing firm culture, instituting standards and making certain everyone delegates the appropriate responsibilities to the correct roles.

Part Two will cover in-house versus outsourcing strategies for paper and electronic discovery. Every firm, regardless of size and internal capabilities, should have external partners for collection, processing, hosting and production. The reasons for this include risk management, working with co-counsel and trying new review platforms without impacting internal operations.