Information Governance: The Case For Litigation Support (People, Process and… Predictive Coding)

When case studies are written detailing how the legal industry moved from reviewing paper documents to collecting, reviewing and producing volumes of hard drives the story will undoubtedly include the role of litigation support. Facing complex projects involving electronic discovery, legal teams did what was necessary to solve immediate problems, they hired support professionals. Out of necessity (legal matters generally do not have room for error), attorneys threw money at the new challenges and created a new category of employee, litigation support. They created entire departments focused on electronic discovery. And the results have been favorable. It is generally accepted that there are no ‘silver bullets’ in eDiscovery and that talented support professionals are necessary to manage the complexity.

From a cost perspective, however the employment of an entire new category of employee may be viewed as an inefficient but necessary step on the technology adoption curve. I believe the case studies will be written much differently. Legal matters involve a lot of moving parts with constantly changing requirements. They have input from experts requiring an evaluation and re-evaluation of the case throughout the process. With legal cases, there is a need for high accountability and there is seldom if ever a straight line from start to finish. As a result, attorneys have long developed methods for managing cases with ‘people, processes and technology.' The legal industry knew about "agile" practices before the project management term was created. And, eDiscovery proved to be no different. Legal teams tackled the challenges associated with eDiscovery in a familiar way, they used a multi-discipline team approach.

Today, predictive coding software offers exciting opportunities to improve information governance (IG). Much like the promise of technology for eDiscovery, the opportunity to use data analytics in information management is compelling. Software used by attorneys to code and classify documents offers promise to improve document lifecycle management by automatically classifying and profiling large data sets, providing deeper insight and convenient access to reliable data. However, we also know, software alone will not achieve optimal results.

In summary, leveraging "people, process and technology", IG professionals can improve compliance with a carrot, not a stick. The opportunity is to empower those closest to the work to document, measure and report key metrics, descriptions and activities within an information governance program. By connecting business intelligence to compliance in an incremental process improvement framework, we improve compliance while providing deeper insight into data repositories.

The Value of a Litigation Support Strategic Plan

The successful implementation of process improvement requires:

1. The right business environment;
2. Technology that improves productivity; and
3. People motivated to add value and strategically influence future decisions.

There is little doubt that electronic discovery has created the right environment for project management and process improvement. Attorneys are being asked to provide an unprecedented level of service. This kind of value-added service requires special attention to the management and communication of case details. The complexities associated with electronic discovery are largely to blame or as I like to say credit for this opportunity. And while many technologies exist to help achieve better collaboration and task management, the most critical component, “people” receives the least attention.

As the need to capture and communicate project details has become a high priority, so has the need for a litigation support strategic plan. In legal departments where I have seen process improvement embraced, litigation support continually seeks to show or quantify value to the firm or company. Communicating a vision that seeks to show business value above and beyond simply monitoring tasks is critically important to realizing the benefits of process improvement.

A strategic plan helps enlist employees to seek out a strategic role in the process. Attorneys are good at many things but capturing and deciphering technical and complex details are not generally chief among them. Defining a strategic vision for a legal support department to fill this void goes a long way to establishing a positive foundation for process improvement.

But by itself, a strategic plan is not enough. Management must strategically benefit from the effort. It is critical that management communicate to the department that the new processes have provided important information that advance the goals and objectives of the department. While we all appreciate that proper documentation of case details is desirable, the regular practice of appropriately documenting legal matters is strongly influenced by the strategic use of the information and analysis. Employees, like sharks can sense the blood in the water if management is not committed to the strategic role of the department. I have found that employees will strive to advance the standing of the department as well as their own if they are part of a strategic vision that is reinforced through management’s actions.

The Evolution of Litigation Support From Cost Center to Strategic Asset

An offshoot of IT, litigation support was traditionally a cost center, a part of a law firm that did not produce direct profit but added to the cost of a case. While not directly adding to the firm’s profits, it did typically add value and fulfilled an important function. As a cost center, operational decisions were typically driven by cost considerations. Investments in new equipment, technology and staff were often difficult to justify because indirect profitability does not translate to bottom-line. The value provided by litigation support was poorly understood.

Soon enough, law firms began billing litigation support professionals on an hourly basis. Moving to a profit center, litigation support saw increasing support from law firms, salaries grew significantly after 2003. Law firms saw that skilled project managers or coordinators brought significant value.

As described in my last post, the value demonstrated by litigation support professionals, the ability to manage all the moving parts associated with a legal matter, is today more fully understood. Litigation support helps mediate creative thought among the firm or legal department's people, environment and technology. It organizes details, defines a narrative of what has happened and transfers knowledge among the stakeholders. This understanding provides an opportunity for attorneys to strategically partner with litigation support and to define value delivered to clients.

Adding defined value on a continual basis, litigation support is at its best. It becomes a strategic asset when it captures, measures and applies value from one matter to the next in a continual process improvement methodology. With e-discovery, we learn something new about process nearly every time we execute it. It can be said that the role of litigation support among a host of things is to limit the number of times an attorney feels this is the first time he or she has done ‘this’, fill in the blank. By taking the time to apply our experiences from one matter to the next, litigation support makes the process better. This is especially relevant when we have to insert new processes, which is a constant in litigation support.

Legal Project Management: Why Process Is Important

While process improvement has had a long history in manufacturing, it has a very spotted history with knowledge disciplines such as lawyering and consulting. This is changing quickly thanks to electronic discovery. In some ways the perfect storm, e-discovery has created an environment where a fuller understanding of value must be brought to the table. The days of inefficient planning and time consuming meetings are gone. With increasing client scrutiny, tighter litigation budgets and pressure on billable hours, law firms are recognizing that they must not only be accountable, but they must quantify value in order to remain competitive.

Corporate clients and attorneys today expect an unprecedented level of service, information and collaboration, and they expect this from their outside lawyers, paralegals, litigation support departments as well as all legal vendors they use. Providing the kind of value-added experience required in today's legal environment has been best described as "making sure everything that was to be done, was done in a repeatable way that makes future work predictable." But what do these terms really mean in a practical setting?

With my experience implementing process improvement software and methodology in dozens of Amlaw 200 firms, I summarize the current opportunity for process improvement as follows:

Litigation support is perfectly situation to demonstrate that process improvement is consistent with the needs of law firms and in-house legal departments.

1. Lawyers are good at many things but project tracking and planning are generally not among them. This creates a very positive environment for litigation support professionals to step up and add value. (People)

2. The volume and unpredictability of electronic discovery has created an environment where accountability and planning are necessary. (Environment)

3. Improved collaboration software has made it very cost effective to implement. (Technology).