Ray Bayley is the president and CEO of Novus Law and has worked on a variety of complex litigation matters. He is based in Chicago and is a former managing partner of PricewaterhouseCoopers’ North American Business Process Outsourcing organization and former member of the firm’s management committee. He is currently a member of the advisory boards of the Corporate Counsel Institute at Georgetown University Law Center and the Legal Transformation Study: Your 2020 Vision of the Future.
What important advice do you have for lawyers who are responsible for complex litigation, especially the review, management and analysis of documents?
Based on our experience, I believe that the most important advice for lawyers involved in litigation is to learn (or acquire through business arrangements) the new skills needed in today’s legal marketplace. Managing litigation with the facts buried in many gigabytes of electronically stored data requires a new set of skills that lawyers typically didn’t learn in law school or haven’t been exposed to elsewhere.
The unbridled growth of electronically stored information, complexity of matters, use and implications of technology, has caused document review to evolve from reasonably straightforward legal work into an unmanageably complex exercise unless business process principles are brought to bear on the problem. That requires skills that are new to many lawyers. While reviewing, managing and analyzing documents requires lawyers to provide the direction and supervision, which is work that should be done by a lawyer, the actual process of organizing and processing mountains of information requires skills that are often not found in law firms. These skills include (1) designing and documenting detailed work processes, (2) building and implementing statistically-based quality control systems and (3) creating and delivering competency development programs that assures that the people doing the work have the capabilities necessary to process large amounts of information accurately, efficiently and cost effectively.
What are the biggest challenges lawyers have in this area?
Most lawyers pass through the document review phase of their careers early and rather quickly. Senior lawyers think document review is a rite of passage for young lawyers. But as clients become more demanding and the unabated growth and complexity of document review continues, it becomes an increasingly bigger challenge for lawyers to meet the needs and expectations of their clients while fulfilling their ethical obligation for “competent representation.”
What suggestions do you have for lawyers who are trying to meet these challenges?
Whether they decide to spend the time and money to build the skills necessary to provide document review services within their law firms or work with experienced third-parties who already have them, all lawyers and their law firms should have at a minimum:
- Documented and rigorously controlled work processes for document review, which can and should be independently certified. Such processes would identify each and every step necessary to review and produce documents, so nothing is forgotten and everything is done as efficiently and cost effectively as possible.
- Structured and statistically-based quality control systems, which can also be independently certified. Such systems would measure the accuracy of the work as it is being done and when it is complete to ensure that the lawyers can meet their obligations under the Federal Rules of Civil Procedure and other instructions provided by the Court or agreed to with an opposing party. Most importantly, the quality control programs will help assure that all relevant documents are produced, but no privileged documents are produced. When relying on technology solutions or contract lawyers with no stake in the law firm to meet this standard, law firms are asking for trouble.
- Competency development programs to ensure that lawyers who provide or supervise the document review process have the necessary skills. Such competencies are best learned with well-documented training programs and demonstrated through testing and certification.
How do you think this area of specialization will change in the years ahead?
When Benjamin Franklin said, “In this world nothing can be said to be certain, except death and taxes,” he wasn’t thinking about e-discovery, document review and the challenges lawyers will continue to face in this increasingly complex and foreign practice area. It’s certain that electronically stored information will continue to grow unabated and the solutions needed to meet this ever-increasing challenge will continue to require skills other than what most lawyers learn in law schools. Lawyers are problem solvers. The best way to solve this problem is to apply business process principles to the tasks and design quality control programs that assure that the processes are adhered to and produce the desired results This requires lawyers to make significant investments to learn new skills or engage qualified third-parties to help them.