Addressing Value Challenges With Collaborative Workspaces

Today's law firms face unprecedented challenges in a highly competitive and rapidly evolving marketplace. Corporate clients, under intense pressure to cut costs and increase efficiency within their own organizations, are no longer willing to simply pay an hourly rate for services rendered in good faith. They are unapologetic in demanding increased accountability and demonstrable value from the legal teams who represent them. In particular, they are seeking more predictable litigation schedules and budgets and, understandably, they expect legal outcomes that reflect the costs of the services for which they are paying. Further, as users of progressive technologies themselves, corporate clients expect that their law firm will also embrace and be well-versed in technology to offer more effective representation and lower costs.

Meanwhile, law firms are struggling to get rapidly increasing costs under control in a global information economy that has ushered in exploding data volumes, diverse data formats, dispersed legal teams, and large-scale, complex litigation which frequently crosses geographical and jurisdictional borders. In an attempt to get a better handle on runaway costs and improve the accuracy of budget projections, many law firms look to sophisticated technological tools as an opportunity to defensibly manage and cull data and streamline workflows in a more efficient, less labor-intensive way.

Benefits and Risks Of Technology

Investing in technology to create value for clients is certainly a promising approach to reining in costs. But, to be cost effective and facilitate winning legal strategies in the long term, tools must be selected wisely and used intelligently. A 2012 change to the commentary of Rule 1.1 of the ABA Model Rules of Professional Conduct regarding competent representation states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject (emphasis added). See, Comment 8 on Rule 1.1.

There are many implications to this comment for practicing attorneys, but here are a few key points:

• Attorneys need to understand their clients' information technology (IT) infrastructure so they can ensure proper identification, preservation and collection of potentially relevant data.
• Attorneys need to have a solid understanding of electronic discovery phases and tools, including advanced technologies like categorization and predictive coding, as well as the various methodologies underlying these technologies.
• Attorneys need to look beyond traditional approaches to e-discovery and explore other technologies that can help them perform the kinds of tasks they were originally trained to do as lawyers ' particularly in the areas of case management and trial work.
• If attorneys do not understand these issues, they need to associate themselves with someone who does.

The first two points are increasingly well understood in the legal community. No serious lawyer serving corporate clients is unaware of the need to be prepared to defend the decision-making with regard to preservation, collection, and production of evidence, or of the existence of powerful e-discovery technology platforms that can help legal teams reduce and organize data that may be relevant to a case or investigation. These tools can be very effective at performing discrete operations on massive stores of data, and in many cases they can be demonstrably superior to human workers in terms of speed, accuracy and efficiency. Indeed, for many firms, the efficiencies these tools have created have already been largely achieved. For technology-savvy organizations that have made sound investments or partnerships in e-discovery technology, there may be little room for additional cost-cutting and staff reductions that don't pose the risk of undermining long-term value for clients and associated revenues.

However, e-discovery and data management platforms are not the only technologies available that can help law firms and their clients maximize the value of their work. While there are still relatively few sophisticated tools in today's marketplace to make it easier for legal professionals to share thoughts and interact as they learn the facts of a case and develop strategies, that's beginning to change. New products have emerged that are designed specifically to allow attorneys and support staff to communicate and collaborate more efficiently as they perform the substantive legal work that being an advocate demands: analyzing cases, identifying key issues and themes, building arguments and preparing for negotiations or trial.

Collaboration: Value And Challenges

A key concept in this substantive legal work is collaboration. Smart partners should embrace collaboration, in spite of the difficulties and discomfort it may engender among individual attorneys. Why? For one thing, law firms focused on producing value for their clients over the long term understand that dedicated professionals working together intensively and cooperatively can arrive at new insights and effective strategies that might have otherwise eluded them. But it's also important to emphasize the benefits of collaboration in the context of the new global economy. Today's matters often require that legal teams work across geographic, cultural and jurisdictional boundaries, and many of today's complex matters also require legal expertise in multiple practice areas.

Truly collaborative legal work takes effort and commitment on the part of each individual involved. Team members must respect and trust each other, and they must tolerate a more fluid work environment where responsibilities and the decision-making process frequently change according to the specific demands of the work at hand. On the other hand, while it's true that structural and interpersonal barriers can sometimes inhibit collaboration, recent research has shown that effective collaboration, particularly when it bridges different practices within a firm, can result in a number of lasting benefits, including:

• Higher value and more sophisticated work that is less likely to become commoditized, and thus can command and justify higher fees.
• Innovative outcomes that more closely address the specific needs of individual clients, and produce more satisfied customers and repeat business.
• Reductions in professional turnover and a more positive culture that strengthens relationships, not only within the firm but also between the firm and its clients.

See, Heidi K Gardner, “The Collaboration Imperative for Today's Law Firms: Leading High-Performance Teamwork for Maximum Benefit,” Managing Talent For Success: Talent Development In Law Firms, (R. Normand-Hochman, ed., 2013).

Collaborative Workspaces

Even among firms that understand the value of collaboration, there still can be significant inefficiencies in the way the team members interact with each other on individual or related matters. Also, many firms are now encouraging cross-office collaboration, in part because they want to be able to incorporate the best, most specialized, most relevant expertise they have available to address particular legal issues, regardless of geographic location.

But with multiple team members on diverse schedules working in a variety of locations, and with hundreds or even thousands of documents and annotations accumulating over time, communicating effectively and efficiently by solely relying on e-mail or conference calls is all but impossible. Lawyers find themselves constantly searching endless e-mail threads for the latest versions of documents, and meetings with clients or opposing counsel can quickly get bogged down as attorneys and their assistants fumble to produce the right materials at the right time.

The good news is that new platforms are being developed and are gaining traction that help teams build a secure online “war room” where all team members, wherever they may be, can easily and simultaneously access all the documents, transcripts and research, along with all the associated attorney work product, in a single workspace.

These online, litigation-specific collaborative workspaces offer a key opportunity for firms to bring strategic value to their litigation and case management processes ' in essence, giving a technological backbone to the process and results of grassroots teamwork. The best of these products offer team members working from any location ' not just across offices but also the client's site, the airport, the courthouse ' a single, secure, easy-to-use interface that provides access to a master set of key evidence, exhibits, pleadings, court orders, transcripts, case law. Credible products also provide mark-up tools, which the team can use to highlight text, tag it or color code it for an issue, add notes, and create hyperlinks to other passages within a document or in other documents or transcripts, all of which will be immediately apparent and available to any subsequent user to provide input as well. The most effective platforms allow users to send alerts with the click of a button to a colleague to call attention to new findings or insights, and that colleague can respond right in the tool itself so that everyone on the team gets the benefit of the discussion and decision. Attorney work product, such as outlines, chronologies, tags, and so on can also be saved in the same workspace. In addition to making the key documents, transcripts and work product available from anywhere, a cloud-based tool ' one that has been properly evaluated for the security and safety of client and attorney data ' can help reduce upfront expenditures, IT maintenance costs, and usage fees as the case grows or contracts.

The Tip of the Iceberg

One example of the use of a collaborative workspace can illustrate the point. Information about hundreds of small, related cases brought by a single adversary was brought together in a collaborative tool in order to evaluate and set the recommended settlement amounts for each case, ensuring that the total cap for which the client had given settlement authority was not exceeded and like plaintiffs were treated similarly. The legal team included supporting documentation for the recommendation and the status of the negotiations. All of this information was at the client's fingertips, and the client could give feedback on the team's recommendations and approve the final settlement amount right in the tool itself. Using the tool made it possible to avoid the endless e-mailing or phone calls that would typically be required to resolve that many cases ' along with the associated cost overruns, delays, and bottlenecks that can occur with a more traditional approach.

The legal industry is only beginning to tap into the power of these workspaces. Imagine the time and energy savings achieved when you can see all the key information about a document in just one place. For example, you can quickly assess what three different deponents testified to about the document (which will later help with authentication and admissibility), how we framed the argument about that document in a summary judgment brief, how our adversary attacked our characterization of that document, what other records or testimony are critical to the interpretation of that document, and what the lead trial attorney's views are on the document. A collaborative platform can make it possible to do this quickly. As the volume of evidence and the complexity of cases grows, the value of online collaborative workspaces increases exponentially. Having a collection of printed documents related to a particular topic in a binder is one thing. But there may be hundreds of items in that binder, and having a way to instantly show attorneys how one document relates to another, and how one passage relates to multiple other passages in other documents, is invaluable ' and not just because it can save time. In a collaborative workspace, the thread of legal reasoning is not reconstructed each time you consult the materials related to the topic. As a result, knowledge is ultimately deeper and richer. It's instantly clear what the strengths and weaknesses of an argument are, where there are gaps in logic that need to be reconciled, how the argument evolves over time, and how the court's view of an issue may have changed over the course of multiple decisions in the case. These can be valuable insights in a high-stakes matter.

Strengthening the Backbone

To create long-term, strategic value ' and get repeat business from clients ' law firms must work better, not just cheaper. Cost-cutting alone is not sufficient. Instead, organizations need to learn to generate new value from existing processes. One way to do that is to investigate how technology can help streamline the very complex processes involved in case management, and make it easier for teams of legal professionals to work together and communicate more efficiently as they develop legal strategy and adjust to the twists and turns of a case. Online collaborative workspaces hold tremendous promise for proactive organizations looking for new ways to reduce inefficiencies, add meaningful value to existing services and cultivate lasting relationships with important clients.

Karin S. Jenson is a partner at Baker & Hostetler in New York. Clare Foley is vice president of litigation solutions for Opus 2 Magnum. This article also appeared in The New York Law Journal, an ALM sibling publication of this newsletter.

Today's law firms face unprecedented challenges in a highly competitive and rapidly evolving marketplace. Corporate clients, under intense pressure to cut costs and increase efficiency within their own organizations, are no longer willing to simply pay an hourly rate for services rendered in good faith. They are unapologetic in demanding increased accountability and demonstrable value from the legal teams who represent them. In particular, they are seeking more predictable litigation schedules and budgets and, understandably, they expect legal outcomes that reflect the costs of the services for which they are paying. Further, as users of progressive technologies themselves, corporate clients expect that their law firm will also embrace and be well-versed in technology to offer more effective representation and lower costs.

Meanwhile, law firms are struggling to get rapidly increasing costs under control in a global information economy that has ushered in exploding data volumes, diverse data formats, dispersed legal teams, and large-scale, complex litigation which frequently crosses geographical and jurisdictional borders. In an attempt to get a better handle on runaway costs and improve the accuracy of budget projections, many law firms look to sophisticated technological tools as an opportunity to defensibly manage and cull data and streamline workflows in a more efficient, less labor-intensive way.

Benefits and Risks Of Technology

Investing in technology to create value for clients is certainly a promising approach to reining in costs. But, to be cost effective and facilitate winning legal strategies in the long term, tools must be selected wisely and used intelligently. A 2012 change to the commentary of Rule 1.1 of the ABA Model Rules of Professional Conduct regarding competent representation states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject (emphasis added). See, Comment 8 on Rule 1.1.

There are many implications to this comment for practicing attorneys, but here are a few key points:

• Attorneys need to understand their clients' information technology (IT) infrastructure so they can ensure proper identification, preservation and collection of potentially relevant data.
• Attorneys need to have a solid understanding of electronic discovery phases and tools, including advanced technologies like categorization and predictive coding, as well as the various methodologies underlying these technologies.
• Attorneys need to look beyond traditional approaches to e-discovery and explore other technologies that can help them perform the kinds of tasks they were originally trained to do as lawyers ' particularly in the areas of case management and trial work.
• If attorneys do not understand these issues, they need to associate themselves with someone who does.

The first two points are increasingly well understood in the legal community. No serious lawyer serving corporate clients is unaware of the need to be prepared to defend the decision-making with regard to preservation, collection, and production of evidence, or of the existence of powerful e-discovery technology platforms that can help legal teams reduce and organize data that may be relevant to a case or investigation. These tools can be very effective at performing discrete operations on massive stores of data, and in many cases they can be demonstrably superior to human workers in terms of speed, accuracy and efficiency. Indeed, for many firms, the efficiencies these tools have created have already been largely achieved. For technology-savvy organizations that have made sound investments or partnerships in e-discovery technology, there may be little room for additional cost-cutting and staff reductions that don't pose the risk of undermining long-term value for clients and associated revenues.

However, e-discovery and data management platforms are not the only technologies available that can help law firms and their clients maximize the value of their work. While there are still relatively few sophisticated tools in today's marketplace to make it easier for legal professionals to share thoughts and interact as they learn the facts of a case and develop strategies, that's beginning to change. New products have emerged that are designed specifically to allow attorneys and support staff to communicate and collaborate more efficiently as they perform the substantive legal work that being an advocate demands: analyzing cases, identifying key issues and themes, building arguments and preparing for negotiations or trial.

Collaboration: Value And Challenges

A key concept in this substantive legal work is collaboration. Smart partners should embrace collaboration, in spite of the difficulties and discomfort it may engender among individual attorneys. Why? For one thing, law firms focused on producing value for their clients over the long term understand that dedicated professionals working together intensively and cooperatively can arrive at new insights and effective strategies that might have otherwise eluded them. But it's also important to emphasize the benefits of collaboration in the context of the new global economy. Today's matters often require that legal teams work across geographic, cultural and jurisdictional boundaries, and many of today's complex matters also require legal expertise in multiple practice areas.

Truly collaborative legal work takes effort and commitment on the part of each individual involved. Team members must respect and trust each other, and they must tolerate a more fluid work environment where responsibilities and the decision-making process frequently change according to the specific demands of the work at hand. On the other hand, while it's true that structural and interpersonal barriers can sometimes inhibit collaboration, recent research has shown that effective collaboration, particularly when it bridges different practices within a firm, can result in a number of lasting benefits, including:

• Higher value and more sophisticated work that is less likely to become commoditized, and thus can command and justify higher fees.
• Innovative outcomes that more closely address the specific needs of individual clients, and produce more satisfied customers and repeat business.
• Reductions in professional turnover and a more positive culture that strengthens relationships, not only within the firm but also between the firm and its clients.

See, Heidi K Gardner, “The Collaboration Imperative for Today's Law Firms: Leading High-Performance Teamwork for Maximum Benefit,” Managing Talent For Success: Talent Development In Law Firms, (R. Normand-Hochman, ed., 2013).

Collaborative Workspaces

Even among firms that understand the value of collaboration, there still can be significant inefficiencies in the way the team members interact with each other on individual or related matters. Also, many firms are now encouraging cross-office collaboration, in part because they want to be able to incorporate the best, most specialized, most relevant expertise they have available to address particular legal issues, regardless of geographic location.

But with multiple team members on diverse schedules working in a variety of locations, and with hundreds or even thousands of documents and annotations accumulating over time, communicating effectively and efficiently by solely relying on e-mail or conference calls is all but impossible. Lawyers find themselves constantly searching endless e-mail threads for the latest versions of documents, and meetings with clients or opposing counsel can quickly get bogged down as attorneys and their assistants fumble to produce the right materials at the right time.

The good news is that new platforms are being developed and are gaining traction that help teams build a secure online “war room” where all team members, wherever they may be, can easily and simultaneously access all the documents, transcripts and research, along with all the associated attorney work product, in a single workspace.

These online, litigation-specific collaborative workspaces offer a key opportunity for firms to bring strategic value to their litigation and case management processes ' in essence, giving a technological backbone to the process and results of grassroots teamwork. The best of these products offer team members working from any location ' not just across offices but also the client's site, the airport, the courthouse ' a single, secure, easy-to-use interface that provides access to a master set of key evidence, exhibits, pleadings, court orders, transcripts, case law. Credible products also provide mark-up tools, which the team can use to highlight text, tag it or color code it for an issue, add notes, and create hyperlinks to other passages within a document or in other documents or transcripts, all of which will be immediately apparent and available to any subsequent user to provide input as well. The most effective platforms allow users to send alerts with the click of a button to a colleague to call attention to new findings or insights, and that colleague can respond right in the tool itself so that everyone on the team gets the benefit of the discussion and decision. Attorney work product, such as outlines, chronologies, tags, and so on can also be saved in the same workspace. In addition to making the key documents, transcripts and work product available from anywhere, a cloud-based tool ' one that has been properly evaluated for the security and safety of client and attorney data ' can help reduce upfront expenditures, IT maintenance costs, and usage fees as the case grows or contracts.

The Tip of the Iceberg

One example of the use of a collaborative workspace can illustrate the point. Information about hundreds of small, related cases brought by a single adversary was brought together in a collaborative tool in order to evaluate and set the recommended settlement amounts for each case, ensuring that the total cap for which the client had given settlement authority was not exceeded and like plaintiffs were treated similarly. The legal team included supporting documentation for the recommendation and the status of the negotiations. All of this information was at the client's fingertips, and the client could give feedback on the team's recommendations and approve the final settlement amount right in the tool itself. Using the tool made it possible to avoid the endless e-mailing or phone calls that would typically be required to resolve that many cases ' along with the associated cost overruns, delays, and bottlenecks that can occur with a more traditional approach.

The legal industry is only beginning to tap into the power of these workspaces. Imagine the time and energy savings achieved when you can see all the key information about a document in just one place. For example, you can quickly assess what three different deponents testified to about the document (which will later help with authentication and admissibility), how we framed the argument about that document in a summary judgment brief, how our adversary attacked our characterization of that document, what other records or testimony are critical to the interpretation of that document, and what the lead trial attorney's views are on the document. A collaborative platform can make it possible to do this quickly. As the volume of evidence and the complexity of cases grows, the value of online collaborative workspaces increases exponentially. Having a collection of printed documents related to a particular topic in a binder is one thing. But there may be hundreds of items in that binder, and having a way to instantly show attorneys how one document relates to another, and how one passage relates to multiple other passages in other documents, is invaluable ' and not just because it can save time. In a collaborative workspace, the thread of legal reasoning is not reconstructed each time you consult the materials related to the topic. As a result, knowledge is ultimately deeper and richer. It's instantly clear what the strengths and weaknesses of an argument are, where there are gaps in logic that need to be reconciled, how the argument evolves over time, and how the court's view of an issue may have changed over the course of multiple decisions in the case. These can be valuable insights in a high-stakes matter.

Strengthening the Backbone

To create long-term, strategic value ' and get repeat business from clients ' law firms must work better, not just cheaper. Cost-cutting alone is not sufficient. Instead, organizations need to learn to generate new value from existing processes. One way to do that is to investigate how technology can help streamline the very complex processes involved in case management, and make it easier for teams of legal professionals to work together and communicate more efficiently as they develop legal strategy and adjust to the twists and turns of a case. Online collaborative workspaces hold tremendous promise for proactive organizations looking for new ways to reduce inefficiencies, add meaningful value to existing services and cultivate lasting relationships with important clients.

Karin S. Jenson is a partner at Baker & Hostetler in New York. Clare Foley is vice president of litigation solutions for Opus 2 Magnum. This article also appeared in The New York Law Journal, an ALM sibling publication of this newsletter.