Tag Archives: e-discovery

Is Your Law Firm Prepared For An E-Discovery Evolution?

Just twenty years ago, it was hard to image that electronic communication could be tracked, let alone produced by court order. Now, instead of human eyes scanning physical documents during discovery, digital engines search through hundreds of documents in mere milliseconds.

E-discovery has experienced a major evolution in recent years, reports Kroll Ontrack in its presentation “5 Daunting Problems Facing E-Discovery.”

At first, in the 2000s, e-discovery technology was limited to keyword search. Then, its artificial intelligence began to de-dupe. Next, files could be sorted and searched in different formats—from pdf to tiff. Then, there emerged review analytics with thousands of customizable statistics available upon demand.

Today, with a single keystroke, social media, cloud-stored documents, and even audio files can be undergo TAR, or Technology Assisted Review, which uses predictive coding that can nearly replace the grunt-work traditionally assigned first-year lawyers.

TAR, also known as intelligent review or computer-assisted review, remains an under-utilized resource in law firms. Lawyers, and certainly their clients, feel better about having eyes on every document.

Nevertheless, with proper training, TAR can save your law firm professionals time and your clients money. In addition to keeping apprised of the many developments in the technology surround e-discovery, your law firm should also remain aware of all regulatory changes.

For example, this week, e-discovery risks a major revolution.

Recently, the Committee on Rules of Practice & Procedure (“Standing Committee”) of the Judicial Conference of the United States formally released a package of proposed amendments to the Federal Rules of Civil Procedure (“FRCP”) governing the pre-trial discovery process (read the Forbes report here).

And, the comment period for the proposed amendments to the discovery rules began on August 15 and ends by February 15, 2014. You can submit your comments here.

What does this mean for your law firm?

The proposed amendments concern the cooperation to collect, timing of, preservation of, proportionality of, costs of and limitation of e-discovery. There are, particularly, important implications for attorneys specializing in employment law, like discrimination litigation. Read the entire list of proposals here.

So, to answer the title question: Is your law firm prepared for the e-discovery evolution? Consider the following actions:

  1. Conduct an analysis of your e-discovery technology. Are there more recent versions of your current software? What is your total usage compared to potential usage? Are your law firm professionals trained in e-discovery? Do they rely on TAR? Can your processes be streamlined or made more efficient. 
  2. Based on your results from the firm-wide survey, calculate the returns on investment of improving your e-discovery processes. Create a formal policy or manual to train or guide your employees.
  3. Have your IT visit each lawyer individually. Just ten minutes in individual question-and-answer sessions can drastically improve your e-discovery capabilities and efficiency.
  4. Circulate a monthly internal memo in the firm that includes important regulatory updates. Of course, CLEs should keep lawyers informed, but often internal memoranda can answer questions on paper that people are afraid to ask in person.

A craftsman is only as good as his tools; so, to craft better laws, lawyers need to consistently evaluate the condition of their technology resources.

The Center for Competitive Management (C4CM) offers E-Discovery Guidance and Best Practices.

In this practical audio conference, C4CM’s e-discovery expert will provide you with an inside look at the current state of e-discovery, current best practices, and how to reduce your costs and risks. You’ll also learn key tips and invaluable techniques for keeping your data secure.

By the end of this session, you’ll also know:

  • Why pre-litigation planning, including data mapping, is crucial to manage risk
  • How to institute a defensible legal hold
  • Best practices for developing a defensible collection and production process
  • How to choose wisely when outsourcing: onshoring, offshoring and ethical considerations
  • Best practices for reducing the cost of document review – including privilege review–while maintaining quality and defensibility
  • Five costly mistakes to avoid

-WB

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Why Integrating Legal Technology Will Save Your Firm Time And Money

Although your law firm manager may not be yelling over the internal comm-system, “Time is money, people!” certainly, he or she is thinking it.

So why, exactly, does time equal money?

In purely financial terms, there exists a time value of money. Money earns interest over time. So, the value of money actually changes—for example, if invested, $100, in one year, could turn into $105 future value at 5 percent interest.

In addition, if a finite amount of money is spent to accomplish a certain task, the money is spent in place of a second, possible, alternative task. Would you rather spend $15 per hour for a paralegal to locate a physical document in the law library over 10 hours? Or, would it be more efficient and cost-effective to purchase e-document software at $150 that locates important paperwork in under 5 minutes?

These are all questions with which financial consultants and law firm administrators struggle everyday.

And, in the 21st Century, questions about the time value of money generally surround a tradeoff: investments in technology or in manpower.

The Legal Loudspeaker suggests a few reasons why technology converts time into money in the article excerpted below:

When you’re efficient, you take on less risk – Simply put, the less time you spend on a contingency case, the less risk associated with taking it on. If you lose, you’re not sacrificing as much time or revenue. If you win, you’ll make the same amount of money, but since you spent less time on the case, your margins are higher. And, if you win or lose but don’t get paid, you’re out less money.

When you’re efficient, you can take on more cases – If you can generate a Will twice as fast as your competitor, you can do twice the amount of work, right? When your process for settling civil disputes speeds up, you can twice as many disputes. In essence, the more time savings you experience, the more availability you have to generate revenue, and the more revenue you can generate.

When you’re efficient, you can spend more time on client-facing activities – I get it, just because you have more time in your day doesn’t mean you’ll necessarily have clients running to your door asking for your services. But it does mean that you can do more indirect revenue-generating activities.  Spend your new-found time meeting people, creating stronger relationships with your clients, and building value in your firm. Try to  drive in new opportunities from your current client base (maybe they didn’t know you take on divorces). Did you know that once you have a client, each subsequent sale has a close ratio of over 70%? It’s easy money!”

To read the entire article, go here.

So, are you sold on technology, but unsure where to start? Think about integrating the following products into your business systems:

iPad.

Apps for smartphones and the iPad have contributed some of the most significant improvements in efficiency and productivity within law firms recently. Get with your IT Department to brainstorm how best to implement this tool into your everyday legal activity.

Read about some of the most valuable legal iPad apps here.

Near-Field Communications (NFC) Technology.

From Google Wallet to Starbucks Mobile Payment App, NFC technology has myriad uses in law and billing arrangements.

Make sure your firm is paid on-time by reading about applications for NFC technology here.

Social Media and Blogging.

Social media sites like LinkedIn or legal recruitment web-agenices, including lawcrossing.com, are cheap and easy ways to locate qualified candidates. It saves recruiters time and money by already compiling information about prospective employees.

Even if your firm is not looking to hire, it’s certainly still looking to recruit clients. At which point, social media—blog posts, tweets, or Facebook feeds—become crucial in advertising what services your firm offers, who its lawyers are, and why a client should hire you, as opposed to another firm.

In the time it took you to read this line, I sent a tweet, then 500 people read it. Talk about a brand new, instant value for time in money.

E-Discovery Software.

Today, most law firms already use some sort of electronic discovery software. However, when did your firm last update it?

The capabilities of software and technology change rapidly each day. Thus, if you can’t remember the last time your firm updated its online systems, chances are there exists a more efficient way to organize and file e-discovery documents. 

In sum, time, money, and technology are inextricably linked. So, consider putting together a “technology team” at your law firm—to keep apprised of developments in the field of legal gadgetry—one that will ensure your associates are not falling behind or sinking your bottom line.

-WB

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Crash of Air France 447: What Pilots and Law Firm Professionals Can Learn

The moment was unforgettable in aviation history. No mayday call, no eyewitness, not even a slight radar trace of the Air France flight from Rio de Janeiro-Galeão (GIG) to Paris-Roissy (CDG) was found on June 1, 2009.

After extensive search efforts, finally, wreckage from the flight was discovered in the Atlantic Ocean where the airliner crashed that fateful night.

Two years later, Popular Mechanics published a synopsis of the event, titled “What Really Happened Aboard Air France 447.”

In it, author Jeff Wise states, “Neither weather nor malfunction doomed AF447, nor a complex chain of error, but a simple but persistent mistake on the part of one of the pilots. Human judgments, of course, are never made in a vacuum. Pilots are part of a complex system that can either increase or reduce the probability that they will make a mistake.”

Pilots, physicians, even law firm professionals are all part of a complex system that demands cooperation to be successful.

Each could benefit from reading the following excerpt from the Popular Mechanics article:

02:11:21 (Robert) On a pourtant les moteurs! Qu’est-ce qui se passe bordel? Je ne comprends pas ce que se passe.
We still have the engines! What the hell is happening? I don’t understand what’s happening.

Unlike the control yokes of a Boeing jetliner, the side sticks on an Airbus are “asynchronous”—that is, they move independently. “If the person in the right seat is pulling back on the joystick, the person in the left seat doesn’t feel it,” says Dr. David Esser, a professor of aeronautical science at Embry-Riddle Aeronautical University. “Their stick doesn’t move just because the other one does, unlike the old-fashioned mechanical systems like you find in small planes, where if you turn one, the [other] one turns the same way.” Robert has no idea that, despite their conversation about descending, Bonin has continued to pull back on the side stick.

The men are utterly failing to engage in an important process known as crew resource management, or CRM. They are failing, essentially, to cooperate. It is not clear to either one of them who is responsible for what, and who is doing what. This is a natural result of having two co-pilots flying the plane. “When you have a captain and a first officer in the cockpit, it’s clear who’s in charge,” Nutter explains. “The captain has command authority. He’s legally responsible for the safety of the flight. When you put two first officers up front, it changes things. You don’t have the sort of traditional discipline imposed on the flight deck when you have a captain.”

The vertical speed toward the ocean accelerates. If Bonin were to let go of the controls, the nose would fall and the plane would regain forward speed. But because he is holding the stick all the way back, the nose remains high and the plane has barely enough forward speed for the controls to be effective. As turbulence continues to buffet the plane, it is nearly impossible to keep the wings level.

02:11:32 (Bonin) Putain, j’ai plus le contrôle de l’avion, là! J’ai plus le contrôle de l’avion!
Damn it, I don’t have control of the plane, I don’t have control of the plane at all!

02:11:37 (Robert) Commandes à gauche!
Left seat taking control!

At last, the more senior of the pilots (and the one who seems to have a somewhat better grasp of the situation) now takes control of the airplane. Unfortunately, he, too, seems unaware of the fact that the plane is now stalled, and pulls back on the stick as well. Although the plane’s nose is pitched up, it is descending at a 40-degree angle. The stall warning continues to sound. At any rate, Bonin soon after takes back the controls.   A minute and a half after the crisis began, the captain returns to the cockpit. The stall warning continues to blare.

We now know what became of the international flight, but are the lessons learned from it being promulgated around the world?

Stewart Baker, author of the Volokh Conspiracy, likens this disaster to cyberwar, writing “Once we lose faith in computer systems, especially in an emergency, all of us are likely to ask, ‘What instruments are reliable, and which can’t be trusted? What’s the most pressing threat? What’s going on?’”

In a similar way, the Air France crash can provide lessons learned for law firm managers, who are responsible for adequately training associates, assessing any weakness within the team, and appropriating the tools necessary to win a case.

On the Airbus plane, controls are “asynchronous”, where movement from one co-pilot cannot be felt by the second. Much the same way, law firm professionals operate independently. Often, one member of the team assigns a research task to their paralegal, not knowing the same task was given to a first-year associate by another attorney.

Keep your lawyers from working asynchronously by implementing a system that requires each case member to report their project assignments back to a single team leader. Allow only one person to assign tasks. Distribute a project list once a week so that the right hand always knows what the left is doing.

Next, adopt the aviation industry’s crew resource management (CRM) system. Attorneys assigned to the same case should understand their position within the team hierarchy and functional model.

Give each associate a specific subject and definable portion of the case—i.e., in a divorce, one associate should compile discoverable research on the wife, another on the husband, a third on legal precedent, and a fourth works on assets and money matters.

Finally, don’t let complex technology eliminate common sense. It’s important to trust your instruments—case management software, e-documents, and electronic bates systems—but it is equally important to trust your instincts.

Law firm managers should take the Air France crash as one more reason to increase on-the-job training. Associates should be taught not to implicitly trust technology.

Attorneys should not get into the routine of relying on a fail-safe for their actions—a person who always proofreads their work or double-checks filing deadlines.

When disaster strikes, attorneys need to talk with one another, cooperate, develop a creative solution to the issue at hand, or—in the worst-case scenario—simply tap into education and common sense.

-WB

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Three Associate Trainings A Firm Shouldn’t Skip

Continuing Legal Education, or CLE, ensures that lawyers admitted to any state bar maintain certain standards of professional and ethical conduct. In the same way lawyers must practice due diligence for a case, so attorneys should be held accountable for their competency and behavior over time. But CLEs are not enough to ensure new associates are fully prepared for the practice of law. The following list contains three trainings that firms should require for first hires.  

1. Discrimination              

The Supreme Court verdict for the Wal-Mart v. Dukes case will certainly change future sex discrimination litigation. But for now, policies on discrimination at the workplace should be made clear to firm employees. However your HR chooses to conduct this training—manuals, videos, podcasts, or in-person—all employees should participate. In the end, the training will either help spare your firm from sex discrimination class-action suits, or, in the least, help inspire your associates in their defense of similar suits for your clients.  

2. Electronic Discovery Software                                    

Electronic discovery is no longer a novel tool for law firms. It’s a necessary one. Some of the best vendors include Attenex, Clearwell, FTI, Guidance, LexisNexis, and Oracle, but law school students would likely not recognize these names.  Law firms do not teach this software, which should generally be chosen by firms according to their practice area and specific needs. Typically, e-discovery software is used by paralegals and legal assistants (other than doc review). However, there’s nothing more inefficient than a partner who is incapable of making a single photocopy (or his own word processing edits). In the same way, all associates should understand the interworkings of case management and e-discovery software so that at trial, in the last hour, there are no surprises.

3. Client Relationship Management          

It’s easy to let equity partners handle all communication with the client. However, associates and of-counsel are essentially partners in-training. As such, they should be comfortable managing client relationships. This means practicing proper email and phone etiquette, providing frequent status updates to the client, and tracking all communication. If a client does not trust every member of their trial team, it’s unlikely they will solicit future services from the firm. Client relationship management should be formalized into a training given by a partner or older associate to further emphasize its importance. Training takes thirty minutes to an hour, but a satisfied client stays (and pays) for life.

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