The Numbers Don't Lie

We recently conducted a survey of senior-level in-house women attorneys in Atlanta, with the goal of identifying a few best practices and sharing the information with the group at a luncheon (which was held yesterday). At a minimum, we opined, it would be reassuring for these women to know that their peers are dealing with some of the same issues, and this would be a more formal way to present the proof.

We got a lot more than the minimum. Over three days, 57 women responded, ranging from leaders within Fortune 500 companies to one-attorney departments. The responses provided some very useful information, especially regarding how in-house departments are working with their outside service providers. In fact, 29 of the respondents shared the steps they are taking to manage legal expenses, negotiate flat fee arrangements and take more work in-house. A handful of the survey questions and results are included after the jump.

One nugget that isn’t so uplifting, which we have discussed on this blog in various posts, is that in-house lawyers are still very worried about job security. Thirty-four percent of respondents listed it as one of “three things that keep me up at night,” with the correlated “economy/effect on company’s business” not too far behind (31.3%). Although we have seen that some companies and departments are starting to come out of the thaw, the majority of the in-house lawyers polled simply do not feel secure yet, even as many of them (48.6%) are taking on more work and responsibility.

These lawyers are and will continue to be under tremendous amounts of pressure and the results-driven environment in which they reside is going to have an effect on the way business is done in the legal profession moving forward, there’s little doubt.

A few of the interesting survey responses (more after the jump):

Which of the following best describes your legal department budget for 2010 (choose one):
    28.6%  Less than 2009
    37.5%  Equal to 2009
    10.7%  Greater than 2009
    23.2%  Not sure

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Multiple Reasons To Avoid Multi-Tasking

Last week, I attended a CLE in which three in-house counsel, all serving as General Counsel or managing counsel over a specific division of their respective companies’ legal departments, said that they didn’t believe anyone was capable of multi-tasking. In fact, they each laughed when the topic of multi-tasking came up. As one attorney explained, “Multi-tasking is a concept invented by a law firm attorney so that he can charge multiple clients for the same six-minute increment.”

As a self-proclaimed multi-tasker, I was shocked to hear that rather than praising the “skill” that allowed me to participate in a conference call, respond to e-mails and revise a contract (all at the same time), they were poo-pooing it as nonsense. But as lawyers aren’t we all expected to multi-task? Isn’t that the only way possible to bill 2,400 hours in a given year – and still find time to sleep and eat? I thought that multi-tasking was the sign of an “efficient” lawyer?

However, after listening to this panel of distinguished lawyers (reformed multi-taskers themselves), I understand their point. There was even an article in the New York Times about it recently, although not specific to lawyers. The point is this: when we’re working on multiple matters at one time, all we’re really doing is switching our attention from one matter to the next in a manner of seconds. We’re not actually focusing on multiple matters simultaneously. So does this mean that as lawyers we’re training ourselves to shorten our attention spans – rather than disciplining ourselves to devote the requisite amount of time to the task at hand before moving on to the next one? Are we really being “efficient” by switching in between phone calls and e-mails and contract revisions all within a manner of seconds – or instead are we actually spending more time on each task because we don’t stick with any one task long enough to get it done (and THEN move on)?

I’m not sure why this concept struck me as it did -- I’ve actually been talking to clients about this very premise for years, but I’ve just never phrased it as “multi-tasking.” In practice, the absence of pressure to multi-task for numerous clients is one reason why our attorneys appear to have much higher efficiency rates on e-discovery reviews over law firm associates. Yes, our attorneys have the benefit of experience – most of the lawyers working in our E-Discovery Division review documents for a living and have been doing so for a number of years (much longer than most junior associates at law firms who may only be one or two years out of law school). They are familiar with multiple review platforms and know how to create searches that will expedite review simply because they have done so many reviews over the years. However, in addition to this experience, perhaps their biggest advantage is that when they are on a review they are solely focused on that one matter until it is completed.

Our attorneys are not expected to multi-task; they’re not interrupted by other clients’ phone calls in the middle of reviewing documents; they don’t have looming appeal deadlines or opposing counsel’s briefs to respond to in the middle of a review; they don’t have partners walking into their offices handing them additional work. They come into the office and review documents (on a single matter, for a single client) all day – until they are done. And then they move on to the next matter.

Perhaps we could all learn something from their discipline – and celebrate their lack of multi-tasking. Now please stop reading this blog post on your blackberry and pay attention to the road.

It's Your Fault! No It's Your Fault!

I decided I would begin my Lawdable blogging career with a look at a somewhat light piece of e-discovery case law … if there is such a thing. I do follow case law and I hope that my future posts on the subject will offer more of a “this is the potential bottom-line effect” versus a strictly academic viewpoint – I find that to be much more practical (and interesting). In the meantime, I look forward to your suggestions or thoughts. Here we go:

Lawsuits are about conflict and not always just between the parties. Is there a client that hasn’t complained about its attorney, or a lawyer who hasn’t bemoaned the actions of his/her client? It’s just part of human nature. But what happens when one or both of you fail to fulfill your preservation obligations, and this leads to sanctions? Who pays the piper?

The obligations of the client and the lawyer are clear: you must preserve Electronically Stored Information (ESI) that is relevant to the case at hand. The lawyer must provide the legal advice on what is potentially relevant and the practical advice on how to preserve it – and then monitor the client’s implementation of that advice. Having and implementing consistent best practices will be your best shot at fulfilling this obligation.

In Green v. McClendon 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009), ESI was lost when the client had “the son of a friend” re-install the operating system on her computer. The lawyer apparently did not properly implement a litigation hold and did not properly inspect and search for relevant ESI on that computer before the son of a friend “helped out.”

The court sanctioned both the client and the lawyer for the costs of the motion to compel and noted that if the court found out later that bad faith was involved in the loss of the ESI, the court would impose an adverse inference.

The final issue for the court was this: how to allocate blame between the client and the lawyer? The court concluded that they should work it out amongst themselves and present the court with a plan. (Really, how do you think that conversation went?) If, however, they are unable to agree on cost allocation then they could present the issue to the court “for determination.” (If that were to happen, does anyone else see any potential conflict there?)

The bottom line is this: the lawyer and the client must understand their obligations to preserve ESI. The lawyer and the client must work together to implement the plan. Working together and following best practices to fulfill the preservation obligation will keep your side moving in the right direction and prevent sanctions – instead of battling each other when sanctions are imposed.

It's Vital To Have An (E-Discovery) Architect

I will not attempt (or bore you with) analogies about architects and house building and e-discovery protocols ... but as rapidly as things change in the e-discovery world, it is increasingly important to provide clients prescient and valuable guidance and to build processes that are consistent and reliable. That’s why it’s my pleasure to announce that Barry Willms has joined Counsel On Call’s E-Discovery Division as Senior Attorney + Discovery Process Architect.

It's a unique title, but an accurate one. Barry spent the last 14 years managing discovery matters for two prestigious law firms, King & Spalding in Atlanta and Bass, Berry & Sims in Nashville. He’s overseen and directed large teams of attorneys and has consulted numerous clients on the tactical use of technology to improve quality control methodologies and results during reviews. His ability to design and implement efficient, repeatable e-discovery processes – along with his background as a great lawyer – synchs perfectly with our E-Discovery Division.

We’ve known and respected Barry for many years and have always been impressed by his forward thinking and knowledge of the issues affecting the discovery process. We are particularly excited about his expertise in the document retention arena – those “pre-discovery” issues many of our clients continuously encounter. But he is also the type of e-discovery expert that our clients seek for project management, creating and implementing protocols, and managing quality control for reviews large and small. With his addition to our corporate team, we’ve truly strengthened our ability to provide our clients services up and down the EDRM.

Barry will also provide another voice on this blog that we believe you will find informative and interesting. Please feel free to peruse his bio or e-mail him some suggestions for a post. No word yet if he has any advice on home building.

Growth Requires Good People

This is not the type of thing we normally post on Lawdable, but tapping into a group of colleagues who are familiar with the services we offer -- and who know a lot of talented people in the profession -- seems like a good place to start versus the randomness of a job posting.

We're looking for two people to join our corporate team, one in Dallas (expansion) and one in Chicago (existing office). If you know anyone who might fit the job description listed here, please feel free to send them our way. We offer experienced lawyers at a low cost for all types of legal work, from e-discovery to highly complex matters -- and we do so for both in-house and outside counsel.

It's an exciting time at Counsel On Call and these positions present great opportunities to introduce the professional services we offer to clients who are very interested in cost containment and flexible legal solutions. If you have questions about the positions, please contact Greg Allen.