DS6.0 Focuses on Big Issues

It’s hard to believe that our annual Discovery Symposium is here already. This is now our sixth year of hosting a select group of clients and Fortune 500 legal departments in Nashville for two days of programming from their in-house discovery professional peers.

As always, this is an event we plan in close consultation with leaders from both large and small legal departments, those who have a large volume of litigation to those who might only have one big case every few years. There are no law firms or vendors in attendance, which is a great aid in generating open and honest dialogue among the 75 or so attendees and getting to the heart of best practices.

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The Innovative Disruption Will Not Be Televised

This guest post is by Eric Griffin, a director at Counsel On Call. Eric works closely with clients to design innovative and cost-effective legal solutions in a variety of verticals and practice areas.

Just over a week ago, Ryan McClead of
3 Geeks and a Law Blog penned a great conversation starter titled “The Myth of Disruptive Technology” in the legal industry. There, he analyzed the fabled competitive battle between the innovative, streaming video of Netflix and the plodding retail video store Blockbuster, and compared it to the situation in today’s legal industry. Although McClead questioned the applicability of the Netflix/Blockbuster paradigm to law practice, he implied that many traditional law firms may be in the same boat as Blockbuster: unable to adapt to a rapidly changing market environment without cannibalizing its core business.

Soon the interwebs were buzzing with arguments surrounding McClead’s implication. People questioned if we are actually living through the legal innovative disruption, or if law practice was even
capable of being disrupted. Does it need to be?

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Rethinking Training and Formalizing the Counsel On Call Way

Counsel On Call has always done things differently in the legal marketplace. Differently for our clients. Differently for our attorneys. Differently in the results we focus on and achieve. We approach projects from a business perspective – using well-trained and experienced attorneys, providing transparent budget forecasts, identifying key metrics to track, using best in breed technology, and employing a best practice approach on all matters are just a few of the issues on which we’ve always been at the forefront.

These initiatives allow us to not only keep long-term clients, but also long-term legal professionals. Legal professionals who are highly skilled, motivated by the work and environment they get to be a part of, and who practice high-level legal work while gaining more control over their life.

In 2014, our focus in the Managed Services Division is to increase the level of specialized training for all of our legal professionals. This training will include explaining much of the EDRM model, integrated with topics we have found to be essential, including how we work and communicate with clients, our collaborative approach to projects, the elements of successful teams, and many more.

We kicked off this Certification Program by visiting each of our offices and Managed Services facilities to focus our team members on understanding the “Counsel On Call Way.” These were open discussions about the issues above, but also touched on understanding the true life cycle of a document, from creation to disposition to understanding all the players who deal with that document.

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Two Big Takeaways From the Madoff/JPMC Compliance Settlement

Today's post is by guest blogger, Michael Blaes.

On Tuesday, JP Morgan Chase (JPMC) and U.S. District Attorney Preet Bharaha announced a landmark settlement of claims arising from the fraudulent schemes perpetrated by Bernard Madoff.
As reported in the New York Law Journal (subscription required), Bharaha took the opportunity to highlight the message that it should stand as a clear and critical message on reporting compliance for banks and as a harbinger of things to come.

The article and the investigation both demonstrate a principle I like to call the “Mosaic Theory” of non-compliance. Each of the myriad compliance failures, while serious, could not possibly justify the magnitude of enforcement action taken against JPMC. When viewed as a whole, with the benefit of hindsight, though, each insular failure becomes part of terribly damaging portrait of systemic insufficiency.

It is not as though no oversight was being performed. It was. The investigation highlights many points at which the oversight of the Madoff accounts roused the suspicion of qualified employees. But, JPMC’s failure to aggregate the points of suspicion into one holistic body of evidence eventually damned them.

When the scheme inevitably came toppling down, a sober review of the evidence showed that JPMC, at various points, knew that suspicious activity existed in the accounts and either didn’t investigate further or even allow their own disparate points of suspicion to coalesce into the necessary motivation to sound the alarm bells with the government. Ultimately, it appears JPMC decided not to file Suspicious Activity Reports many times. Although each decision may have been defensible, the government nonetheless held the company responsible because taking no action, given so many points of concern, was not.

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The Delivery of Managed Legal Services: Part 2

In part one of his series, former general counsel and current Counsel On Call Director, Eric Griffin, described the waves of change he’s witnessed in the legal industry throughout his career due to the disaggregation and commoditization of legal work and associated rise of managed legal services.

In my last
post, I concluded by describing a “three legged stool” model of providing legal services in the modern era; in-house counsel focuses on the business issues, outside counsel focuses on strategy and high level analysis, and the legal business process manager acts as the gatekeeper on costs, process, technology, staffing, metrics and improvement.

But are all types of legal matters amenable to legal process management? If not, what kinds of legal work should be considered for process management?

The fact is, practically all legal tasks (other than those performed in connection with “one-off” and highly unique and infrequently repeated matters) are amenable to process management initiatives. Specifically, managed legal services can bring tremendous efficiency and cost savings to projects involving high volume or repetitive tasks such as (but not limited to) the following:

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Three Factors that Make the Case for Lawyers Using Social Media

In a recent article in Law Technology News, there is a discussion about social media usage among law firm associates. As is usually the case when technology moves forward, there are those who embrace it and those who do not.

No surprise here that lawyers have been more reticent as a group to embrace the use of the latest technology than others. But times seem to be a-changing, and by 2014, investing in social media will no longer be a luxury – it will be a necessity, according to a recent Forbes article.

Glen Gilmore, a New-Jersey-based solo practitioner and social media expert (ranked number 15 on Forbes’ list of social media influencers), found it surprising that only one-third of mid-level associates are “leveraging social media [because] the failure [of] law firms to ‘get’ social… [it] is a terrible disservice to their clients, most of whom are using social media for personal and business purposes.”

What are the factors causing lawyers to participate in social media networks? My list would include: more personal usage, seeing other lawyers surpass them in knowledge and use of social media, client demand and the ability to bill their time, and the ease of research and networkability. I’ve elaborated on these points here:

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A Summary of the Proposed Amendments to the Federal Rules of Civil Procedure

This is a guest post by Counsel On Call attorney, Tiffany Fox.

In June 2013, a series of proposed amendments to the Federal Rules of Civil Procedure was opened for public comment. Most of the proposed changes affect discovery and the growing use of technology in the preservation, collection and production of ESI.

The changes addressing discovery can be broken into four categories: (1) Improvement of judicial case management, (2) Proportionality of discovery, (3) Advancing cooperation, and (4) Creating a higher standard for sanctions for spoliation.

  1. Improvement of judicial case management: In the first category, the changes focus primarily on the case management aspects of litigation. There is a clear intent to speed the process through increased cooperation and specific restrictions on certain stages of litigation. Rules 4(m), 16(b) and 26(d) would reduce the time allowed for filings or issuing scheduling orders, and would allow for discovery requests to be issued earlier in the process. By forcing the parties to keep things moving, the idea is that a judge will spend less time cajoling responses and can get cases in and out of court a bit faster.
  2. Proportionality of discovery: In the second category, proportionality is being added explicitly to Rule 26(b)(1), which limits the scope of discovery. Currently, proportionality is implied by the language used and has been interpreted that way in case law, but as ESI has increased exponentially in recent years, the new, stronger language would give parties less “wiggle room” to request additional discovery. Parties requesting discovery would now have the burden to prove that the requested discovery is proportional to the needs of the case. Additionally, reductions in the number of depositions and interrogatories and time allowed for each (Rules 30, 31, 33, and 36) would ideally create reduced expectations in the minds of practitioners; even though a judge may still adjust the number of depositions according to what is appropriate to a given case, having a smaller presumptive baseline would encourage a smaller total. 
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The Advent of Disaggregation and the Delivery of Managed Legal Services: Part 1

This is Part 1 of a two-part series from Eric Griffin, a director at Counsel On Call. Eric works closely with clients to design innovative and cost-effective legal solutions in a variety of verticals and practice areas.


As little as 30 years ago, most business corporations were staffed with employees who performed all, or virtually all, of the tasks required to deliver products and services to their customers. Even job functions that were only tangentially related to the end product or service were often performed internally by dedicated corporate employees. The outsourcing of tasks to a third party outside of the corporation was an alien concept.

That world no longer exists. Today, businesses are closely examining their internal processes and work flows to determine how to deliver products and services more efficiently. The ubiquity of electronic information systems, as well as the attendant untethering of skilled labor from local job markets, has led directly to the disaggregation and outsourcing of once purely “internal” and even mission-critical tasks. Whole new industries have arisen to provide managed services to corporate clients. The client can selectively outsource various business functions and focus its internal resources on its core business.

But what about the legal industry? Perhaps because of its inherent conservatism, its reputation as a learned profession, or just due to the widely held belief among attorneys that lawyers are different, the profession has generally been slow to embrace a true managed services model of service delivery. Today, even that is changing.

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Priorities, Practice and the Evolving Legal Model

Chief Judge Joel F. Dubina of the U. S. Court of Appeals for the Eleventh Circuit spoke at the 2013 commencement at the Cumberland School of Law. There, he urged the graduates to “avoid scheduling your life away.” He admonished them that “You make this journey through life only once, and some things can be done only during a certain part of your life. You can’t tell an 18-year-old that at long last you have time and are ready to play with him or her. The time to help a friend in trouble is now, not when it is more convenient.”

In an era when commencement speeches are all too often long on words but short on inspiration, I found Judge Dubina’s thoughts right on the money. It’s a message that attorneys and most professionals need to hear. However, I feel a bit different about this topic than I did a few years ago. I believe that the onerous burden of law firm life that befalls new graduates (those who land jobs – possibly a topic for another day) is not as certain a fate as it once was.

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Simplifying the Legal Holds Process for Faster Digestion: Part 4

Finishing her series on legal holds, Counsel On Call attorney Tiffany Fox gives specifics on how to properly follow up with custodians to ensure legal holds are received, understood and complied with, as well as a summary on the changes to Rule 16(b)(3), 26(f)(3) and 37(e).

Simplifying the Legal Holds Process for Faster Digestion (for review):

  1. Preparation: The first step in a defensible legal hold is preparation.
  2. Identifying the Scope of the Hold: The second step is identifying the people who need to receive the hold and what information needs to be preserved.
  3. Issue a Hold Notice: Only after you have spent at least some time identifying custodians should you take the third step of issuing a hold notice.

The fourth and final step in a defensible legal hold process is follow up. It’s not sufficient to ask custodians to preserve data and then do nothing to ensure that they do. Courts will sanction a party that turns a blind eye to what a custodian does or doesn’t preserve, regardless of how innocent counsel was in making the decision. As an attorney you have an obligation to take reasonable steps to ensure that legal holds are received, understood and complied with.

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