Efficiency v. Effectiveness v. Innovation: Why Draw Lines?

There’s a quiet debate among legal pundits that’s often played out on social media sites such as Twitter, one that probably not too many people pay attention to. It’s almost an ancillary argument to the “traditional” way of billing for legal services, but it a debate that I believe cuts to the heart of value and innovation in our profession.

On the one side is the “effectiveness” argument, and one of the most outspoken voices on the topic is Ron Baker of California-based VeraSage Institute. Mr. Baker is a proponent of the death of the billable hour, and frames many of his opinions regarding legal value with the “effectiveness trumps efficiency” argument. If you’re on Twitter, I would encourage you to follow Mr. Baker.

Another proponent of the demise of the billable hour is Pat Lamb of Chicago-based Valorem Law Group – you might recognize Pat from recent 'New Normal' posts on the subject on the ABA Journal website. In a blog post over the weekend, Pat addressed the notion that effectiveness comes at the sacrifice of efficiency, and that the pursuit of efficiency stifles innovation. Pat says it all very well, but I’d like to tack on a couple of thoughts.

When undertaken properly, the search for efficiency can undoubtedly lead to innovation. We see it firsthand when we look at the processes of our clients; how they manage their legal work, who touches the documents, if there are better ways to allocate resources, where money can be saved and work can be handled better, as well as many other factors. We put a new plan into action and, as the process evolves, we look at how our attorneys are working, if the quality (or “effectiveness”) is meeting or exceeding expectations, and how we can do even better work in more efficient ways. As long as the goal is better effectiveness, the search for efficiency can certainly lead to innovation.

A huge target for this is the multiple-level review of documents in the e-discovery process. A common practice is for a team of attorneys to handle a first-level review of the documents and then for outside counsel to re-review a certain percentage of these documents. This process is almost always ripe for efficiency, especially considering the cost of the law firm’s review of the documents. But is it effective for the lawyers trying the case to only see a select portion of the documents?

That’s sometimes a contentious subject, but with a thorough quality control process, adept use of technology platforms and experienced attorneys conducting the initial review (especially those with deep experience litigating cases both small and large), it’s become clear to us that outside counsel often needs to review decreasingly fewer documents. The key is to build an effective QC process alongside outside counsel, part of which includes having senior people on the review team who have a solid understanding of the case and who work closely with outside counsel; they understand what outside counsel is looking for to win the case and can build a process to feed them the right documents. In practice, with each ensuing matter these issues become both more efficient and more effective, but it takes a certain level of innovation to design and implement the process.

So yes, I strongly believe the search for efficiency can lead to better effectiveness AND innovation. In fact, I think efforts in any of the three of these areas can benefit the others.

"Degrees of Freedom," Empowerment Make for Successful Discovery Teams

My thanks goes out to Sarah Randag of the ABA Journal for her January 28, 2011, Question of the Week (“Can Document Review Work Help You Grow As A Lawyer?”), in which she quoted from my previous blog entry. After reading the posted comments, it seems that there are several takeaway points to consider should one decide to work in the discovery arena:

  1. Jobs are what one makes of them.
  2. Who one works for makes a difference.
  3. Degrees of freedom are paramount.

I readily concede the point that discovery and document review work is not for all attorneys. It is true that all document review projects and organizations focusing on providing these services are not equal. I speculate bad experiences with some organizations also contribute to the negative stereotypes of the work. Bad experiences, rather than good, tend to stay with us longer (so psychology suggests). In the end, there are two camps: those who have had good experiences and those who have not. Perhaps the distinction between the two camps, promoters and detractors, is perspective on experiences.

I too have worked on a “traditional” doc review project and understand the comments of the detractors. One thing that makes the Counsel On Call experience unique versus other organizations is that our company is run by attorneys, from the owners to the client liaisons to the project managers. These attorneys have spent years either as in-house counsels or at large law firms. They understand the process, what is needed, the objectives, and the goals – including how to reduce costs without sacrificing the work product. It’s also important to note that Counsel On Call works with dozens of corporate legal departments as well as with law firms; many doc review companies primarily work with law firms and simply provide a "staffing" solution.

My most recent project provided me with a direct line to in-house counsel. Leading the discovery team, I directly reported to the lead in-house attorney placed in charge of the review on which we worked. In this regard, we functioned as an off-site legal department under the supervision and direction of the client. It was not uncommon to provide examples, discuss why a particular record might or might not be considered privileged, and seek other guidance from the in-house attorney. These conversations were both welcomed and encouraged. I was provided with knowledge of the process from receipt of discovery request to actual production. Being involved in, and gaining knowledge of, the big picture changes how the work is viewed and done. We were always treated as a critical and integral part of the legal team.

Maybe that is the point as it relates to degrees of freedom. Because I have a background in Industrial and Organizational Psychology with an emphasis on the “O” side, a portion of my first training was in creating, developing, and maintaining efficient and effective teams. I use “degrees of freedom” in this context as a catchall for empowerment, and research suggests teams work better when they are empowered. Ingredients of empowerment include knowledge, a sense of belonging and the ability to make decisions. When a team is empowered, it develops a sense of ownership of both the work and the final product. The team is, collectively and collaboratively, a separate and distinct entity; distinguishable from the sum total of its parts, the individual team members. To that end, I would hypothesize the “traditional” doc review team which possesses no degrees of freedom, and consequently no empowerment related to its work would be far less effective and efficient than the empowered team of which I am a part.

As I said in my earlier entry, I enjoy my work and learn on each project. I’ve broadened my skill set and gained a better understanding of the discovery process. I’ve also learned more about what’s important to my clients and how I can help the team achieve goals. When it’s all put together, I know I’m a better and more valuable lawyer today than I was before I started working on these discovery matters. 

Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call on Lawdable. To learn more about Shawn, please see his bio or the profile piece in
Counsel On Call’s newsletter from last summer.