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June 11, 2008

EDD Staffing: Transforming Roles

From the June issue of Law Technology News:

By Ari Senders

Working for the last eight years in three major international law firms based in different parts of the country has given me a perspective on the evolving roles of trial support teams. I began my career as a paralegal and eventually moved into litigation support when it became clear that my technical knowledge was better suited to the developing field of electronic data discovery.

While each firm had strengths and weaknesses within its corporate bureaucracy and legal practice, there was a common phenomenon: the traditional trial team responsibilities have been disrupted, and firms are re-examining staffing needs and position criteria.

Firms now realize that demonstrating their comfort with the technology used by their clients is imperative to their success, so they rely upon a combination of internal resources and outside vendors and consultants for their EDD needs. The pass-through cost involved in engaging third party expertise — particularly on matters with smaller budgets — has become prohibitive, so competent internal technical staff has become vital.

Due to this increased need for technical expertise, the unfortunate trend in many law firms has been for attorneys to increasingly rely on litigation support analysts and project managers to complete tasks that can and should be handled by more junior team members.

First, we need to establish some definitions, because there seem to be at least three different names for the position I'm going to call legal assistant. In many firms, that post might also be called a paralegal, or litigation assistant. These three titles apply to recent undergraduates who sign on for what is generally agreed to be a two-year commitment. They are often mentored by senior paralegals who have several years of experience in the particular area of practice they are supporting, working on larger cases.

After the two years, the vast majority go on to law school or other graduate study and a small percentage continue on the career track.

At the entry level, they are not expected to have any particularly specialized skill set beyond those required to function in any normal business environment. At the outset, pay is hourly and minimal, but some firms offer a large incentive bonus once a legal assistant has completed his or her two-year commitment.

By contrast, litigation support staff usually arrive from a wider range of professional backgrounds, with a general focus in either law or technology. In some firms, litigation support staff are considered members of the IT team.

There are generally no entry-level positions for litigation support staff, who are involved in direct interface with trial teams and clients, and may consult on electronic data discovery issues and provide project management. These positions are often filled by tech-savvy former paralegals or attorneys who don't want a partner-track lifestyle, but have had a seasoned background in litigation. However, some firms have a broader range of in-house litigation support positions, including scanning, coding and database specialists — which can be entry level, with the opportunity for advancement within the department.

As Monica Bay reports in this issue's cover story, with the increasing advent of EDD, traditional support roles are beginning to blur, and new opportunities are emerging that help firms reduce costs, increase profits, and offer "better, faster, cheaper" legal services to their clients.

In particular, EDD changes present an opportunity for firms to realign support staff responsibilities, which can help them maintain — or increase — their pool of well-trained support staff.

One important step is to give more training, and more responsibility to the junior members of the team. Ideally, the day-to-day logistics of projects should be managed by legal assistants. Too often, however, this differs from case to case, based solely upon the skill set of the individual legal assistant or team of legal assistants assigned to the project.

Confusion and frustration often result when attorneys delegate tasks and responsibilities.

The prevailing shift is that litigation support departments are becoming the de facto case managers for all things electronic, leaving the legal assistants to handle "the paper." But who uses paper anymore? Of course, there still is a significant but shrinking amount of hard copy documents collected from client sites, or the occasional hard copy production received from opposing counsel, but these are almost always scanned and OCR'd for better organization and searchability.

Firms must expand the technical roles and responsibilities of legal assistants.

Here's how firms can empower legal assistants to take a stronger role, via three critical legal assistant training programs:

1.  Advanced search syntax

Crafting precise searches has become an absolute necessity to formulate document sets for processing or review, and when attempting to locate specific documents by number or relevance. Simply knowing how to use "or" and "and" is no longer enough. Today's successful search strategies include multiple nested parenthetical sets and varying degrees of fuzziness and proximity.

2. Database power user training

The proliferation of many different database applications with varying search engine interfaces and capabilities makes adequate training a constant challenge. But the benefit of having all staff wellversed in the full extent of the chosen system's capabilities is invaluable. Firms should develop internal training programs for the database systems used in-house. For databases hosted externally, vendors are always happy to provide onsite or teleconference training to users either as part of their regular fees or for a minimal extra charge.

3. Information systems theory

Legal assistants should be trained in basic information systems theory, so that they can better understand how and where client data is stored. They need not be experts, but to gain a simple understanding of how corporate e-mail, file servers and hard drives operate together within a standard corporate network.

Legal assistants can manage the workflow of document review independently. Creating and assigning batches of documents to attorneys, tracking review productivity and progress, and designating sets of relevant documents for production are all tasks that can and should be handled by well-trained legal assistants.

Vendor-hosted databases often include modules for these tasks. One of my past firms developed an internal software system that both automates review batch assignment and monitors the productivity of each individual reviewer.

With an intuitive user interface and a battery of canned reports and graphs to share with attorneys, legal assistants became the primary facilitators of their document review projects.

Even without high-end integrated software systems, legal assistants can be trained to collect and track review productivity data and create simple, standard reports to help attorneys better grasp the scope and timing of their cases.

After mastering these areas, a legal assistant should be able to better serve as gatekeeper for day-to-day requests that often go directly from attorneys to litigation support staff. For example, here are the "top 10" attorney FAQs (in no particular order) from my days in litigation support:

1. How do I/Can you run this search in the database?

2. Can I get a listing of the number of hits for each of these terms?

3. How many documents do we have left for review?

4. How many documents did attorney X/the team review today/yesterday/last week?

5. Can you tell me what's on this CD/DVD/hard drive I just got from opposing counsel/the client?

6. When did we receive/send that document/ production?

7. Where was this document stored on the client's system?

8. What is the next available production/Bates number?

9. Can you print these documents for me from the database so I can look at them?

10. Can you fix this Microsoft Excel spreadsheet so it prints right?

Granted, sometimes these questions will need to be escalated to litigation support (particularly No. 5), but the bulk of them should be fully within the domain of a well-trained legal assistant.

Even for No. 5, a well-trained legal assistant should be able to tell the difference between native files and standard database load files/.tiff images.

This should help to free up more time and resources for litigation support to address tasks such as:

• Loading and producing documents to/from internal databases.

• Consulting with case teams and clients on electronic preservation and collection issues.

• Documenting technical aspects of the discovery process.

• Vetting and managing electronic collection, processing and hosting vendors.

• Troubleshooting litigation support programs.

Legal assistants should continue to outnumber litigation support staff. Firms expect paralegals to concentrate their efforts on a much smaller case load.

Allowing litigation assistants to shrink back from their appropriate role because of a lack of technical training or expertise is not advisable economically. Firms that tweak their approach to professional development to account for their increased appetite for technical expertise will better take control of the costs involved in obtaining that expertise, and ultimately serve their clients better.

Ari Senders is a senior consultant with Washington, D.C.-based consultancy, iDiscovery Solutions Inc. E-mail: asenders@idiscoverysolutions.com.

Law Technology News June 2008









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