ARTICLES

Making Document Review a Success. Managing contract attorneys well is crucial to an effective process.

Mark Yacano The National Law Journal 04-25-2006

It has been well reported that the number of suits actually making it to trial has dropped sharply in recent years. By some accounts, jury trials now comprise less than 2 percent of all cases filed. As such, true trial lawyers, skilled at wowing juries with crafty reasoning and dramatic delivery, have far fewer opportunities to display their talents. Oddly enough, however, the hours and expense of preparing for trial have skyrocketed due in great part to the amount of e-mail and other electronic data now involved in discovery. This has sparked a boom in the market for contract attorneys who review documents more cost- effectively than associates (most are billed at less than half the rate of associates). Many companies now regularly expect their law firms to use contract talent in litigation. Indeed, in December 2005, The American Lawyer, an affiliate publication of the NLJ, reported that 77 percent of the 200 highest-grossing U.S. law firms use contract lawyers, and many firms report they employed more contract attorneys in 2005 than in previous years.

As a result, many argue that now what clients need most are good litigation managers, not litigators. So what are firms doing to create better managers who can supervise contract talent in document reviews, and what are they doing to attract and retain the resource that has become the backbone of most litigation support functions-contract attorneys? The answer is: not much. All too often, document reviews occur in windowless rooms with dozens of contract attorneys seated at fold-out tables using computers, equipment and chairs that have been pilfered from empty offices, a jungle of wires snaking around them. Most receive little or no training and are managed by associates disgruntled because their lives have become something they did not picture when they were in law school.

This is a shame, to say the least, because so much is at stake. At best, a poorly managed case results in unhappy workers and high turnover; at worst, it leads to poor work quality, mistakes and release of privilege. In short, how well a firm manages its litigation and its contract talent can make or break a case. Accordingly, the following are best practices -- ideas that can help improve processes and better manage the ranks of contract attorneys.

The legal staffing industry is booming in response to the demand for contract talent. In its 2006 annual forecast, published in the Feb. 24, 2006, issue of Staffing Industry Report, market research firm Staffing Industry Analysts Inc. estimates the legal staffing market will hit $1.5 billion in 2006 (growing 15 percent from 2005 levels). This makes legal staffing one of the fastest-growing segments of the entire staffing industry. As a result, a large number of agencies now exist, and firms must choose carefully.

Firms should ensure that their agencies conduct thorough background checks and that all candidates are properly credentialed. Agency staff should recruit selectively and interview every candidate in person. (Some agencies conduct interviews by phone, especially when recruiting in a location where they have no office. Others host "cattle calls" at local coffee shops to sign up recruits.) Once an agency is selected, it is important to foster a relationship with agency staff. For example, attorneys should consider having weekly meetings with managers from the agencies they use. These meetings can provide a regular forum to give feedback and communicate the firm's needs. As a result, agency managers get to know the firm and become more effective at selecting candidates who suit its needs.

A PROFESSIONAL ENVIRONMENT

The first step to creating a professional environment is to craft a professional workspace. If a workspace is unorganized and dysfunctional and attorneys receive second-rate tools such as clunky, slow computers and uncomfortable fold-out chairs, chances are they will not produce their best work. Law firms should consider providing clean, organized, ergonomic work stations, wire-management systems and state-of-the-art equipment. They should also institute a set number of minimum billable hours per week (say, 32.5) as a requirement for contract attorneys. Firms should ask them to dress professionally and not to listen to music while concentrating on their work. In addition, because document reviews require concentration and enormous attention to detail, firms should consider capping contract attorney hours at some reasonable limit per week to reduce fatigue and ensure high-quality work. Finally, firms should consider having contract attorneys work on the same floor as litigation partners and associates (not in space five floors down or in a warehouse on the other side of town). This can promote seamless project management and ensure that the team is fully integrated. This also emphasizes the importance of the contract talent; a firm should want its attorneys to be invested in their work, so the firm should strive to show it is vested in them.

Contract attorneys should receive as much information as possible to do their jobs well. A most effective tool is the project manual. This document should contain background information on the client, company executives and products, as well as information on the litigation and comprehensive guidelines for the work. Document review work is extremely contextual. Manuals help reduce the number of potential mistakes made by attorneys who must make hundreds of decisions every day about, say, whether an e-mail about a certain product is significant or whether e-mails from a certain executive should be coded privileged. One wrong decision could release privilege on a critical document, so these decisions should not be made in a vacuum.

In addition to providing manuals, investing time in comprehensive training pays dividends. Day one in the life of a contract attorney should be devoted to training and include presentations by team managers and a review of all manual materials. Day two should involve hands-on training with the database. At this time the new attorney can be paired with a mentor (usually another contract attorney who has been on the project for a while). The mentor can then continue the training process for two weeks and be available for mentoring after that.

PROVIDE A CAREER TRACK

Effective litigation managers recognize that attorneys often choose contract work because of the flexibility it affords them (whether they have just moved to the area, are between jobs or are seeking a flexible schedule), and firms should strive to accommodate their needs. At the same time, however, managers must work to reduce turnover by providing incentives for people to stay.

Contract attorneys who do a good job and have been on a project for an amount of time should be offered the chance for promotion. A structured career track may provide motivation. It also helps boost the team's morale; when a promotion is made, firms should circulate a memo to all staff congratulating the promotion recipient. Firms should consider maintaining a multilevel career track including entry-level document review positions, mid-level positions with some management responsibility and senior positions with more responsibility and client contact. In some firms, associates started as contract attorneys and rose through the ranks; they now also manage and mentor attorneys.

Often teams appreciate and respond more effectively to managers who know what it is like to be a contract attorney. Such managers understand the work and are in a better position to provide effective mentoring and training than a paralegal or associate fresh from law school.

A quality control (QC) program reduces mistakes and improves work product; thus it is the cornerstone of any document review. To begin, every document should be scanned and a software program applied, making all text searchable. The documents should then be organized into virtual boxes and assigned to contract attorneys for review. A QC team (comprised of attorneys and contract attorneys) should then review a certain percentage of all boxes to ensure sound and consistent review by the contract attorneys.

In addition, firms should consider using a mixture of advanced technology and specialized review teams to ensure that privileged documents are not inadvertently released and that duplicate documents are given consistent treatment with respect to privilege, responsiveness and confidentiality.

As well as ensuring work quality, QC standards build effective management processes. With a massive amount of data to analyze under strict deadlines, document reviews can be hectic and stressful. Structured QC guidelines focus the team by creating a methodical approach and provide clear guidelines so everyone knows what is expected of him or her.

A STRATEGIC INVESTMENT

Litigation management is the art of producing quality work while also containing costs. Though the programs and policies described above require time and money, they are strategic investments that save clients money in the long run. For example, time invested in producing manuals, training and creating QC processes pays off by reducing errors that would add to the length, expense and ultimate outcome of litigation. In addition, it is important that firms recognize that their contract attorneys have continuing legal education (CLE) requirements just like full-time lawyers, and at $200 a pop, CLE can be expensive. Therefore, free in-house CLE programs tend to be much appreciated.

Similarly, small sacrifices made to create a professional, collegial atmosphere also pay dividends. Managers should recognize that many contract attorneys are between jobs or new to the area; they should not ostracize those who are job hunting. Instead, they should regularly write recommendations and give time off for interviews. Though law firms may hate to lose good people, this policy is beneficial because it encourages an atmosphere of openness between managers and contract attorneys which, in the long run, improves processes and work product.

In addition, along with equipment, facilities, training and other programs, this policy can give a firm a good reputation in the market. Law firms should not burn bridges. They should maintain relationships, and often contract attorneys will return if and when the opportunity arises. Many may also refer friends and colleagues to the firm's program.

Increasingly, clients are not just requiring their firms to utilize more contract talent in litigation, they are actively inquiring about facilities, management capabilities and QC processes. It is thus in the best interests of a firm to make strategic investments in its litigation management processes and, most importantly, the contract talent who form the foundation of its litigation capabilities.

Mark Yacano, a principal in the Richmond, Va., office of Wright, Robinson, Osthimer & Tatum, uses streamlined workflow models to coordinate mass document collections and electronic document review projects. He can be reached at myacano@wrightrobinson.com.