No Better Place Than Florida For A Little E-Discovery

Well, the ACEDS 2011 (Association of Certified E-Discovery Specialists®) inaugural annual conference is over. Beyond our own Discovery Symposium (I’m admittedly biased), for my money it was one of the best, most practical e-discovery conferences I have ever attended. And the venue: wow! Hollywood, Fl., in March sure beats New York or Washington in winter (no offense. I’m just saying….)We love talking e-discovery, especially here.

The schedule included a wide range of topics: social media and cloud computing, the inner workings of how a computer saves information, data mapping, and ethical considerations in e-discovery. Unlike other conferences I’ve attended, this one kept me awake for the most part with a fast-paced program and diverse speaker list.

Sessions were tightly controlled and methodical. The panels were three or four individuals with slightly different topics or emphases and each speaker was given eight or nine minutes to talk. This was followed by both orchestrated (pre-planned) questions in addition to audience participation.

The speakers themselves were a good mix of attorneys, litigation support and IT professionals each coming from and speaking to their unique perspective. The speakers acted like they wanted to be there (which you cannot always take for granted.) They were not solely focused on case law or an academic approach to e-discovery but each session was very practical, current and relevant. It’s also worth mentioning that the moderators did an excellent job of not allowing any one speaker or audience member to dominate the time.

One area for improvement for next year is to spend less time in the introductions of each of the speakers. Some sessions took 20 minutes or more to get going. We have the bios in the materials; no need for reading me their résumé. I also would have liked to have had a better sense of who was in the audience (attorneys, litigation support and IT professionals.)

While I certainly learned many things, my biggest takeaway from the event was confirmation that our team here at Counsel On Call is doing the right things, looking at the right issues and is, in fact, ahead of the curve on many of these topics. The world of e-discovery changes daily, it seems, and we are constantly making efforts to ensure that we don’t lose sight of the bigger picture while stuck in the weeds. Going to events such as ACEDS is very helpful to gain that perspective and hear from people working on many of the same issues as we are.

I hope to be at the Second Annual ACEDS conference in March 2012. Check out ACEDS on-line and on Twitter or at the conference hastag. I also hope to continue the dialogue with some of my new Twitter friends now that we’re each back at our desks (follow me here).

Speaking of being back at home, leaving the conference was difficult. Ft. Lauderdale was 78 degrees compared to Nashville’s brisk 40 degrees. Welcome back to reality.
 

Alternative Fee Arrangements Need Precise Understanding

There’s little question Alternative Fee Arrangements (AFAs) have gained in popularity in recent years, and that interest seems to only be increasing. In a recent survey of in-house attorneys we conducted in Atlanta, 46% of those who planned to implement new strategies in 2010 said they planned to use AFAs. After all, what in-house department wouldn’t want cost certainty in a time when most are being asked to reduce costs?

However, it’s a difficult matter to pin down and price properly. Today’s post from the 3 Geeks and a Law Blog says it very well: you have to understand what goes into your costs before you can manage or reduce them, and thus create a valuable proposition for both you and your clients. And therein lies the rub.

For many matters, there are way too many variables to be able to create a fixed cost forecast that benefits both you and the client. That’s a terrifying predicament for a law firm to be in and roll out on a pricing platform to a client. But is that really the issue? I agree with the 3 Geeks post: many lawyers just don’t understand how these arrangements can (or do) work, and I’d add there’s a question whether they should even be pursued at all if that’s the starting point of the discussion.

I have previously worked on these types of arrangements prior to joining Counsel On Call, in particular, data mapping and record retention projects– two areas in which we had a pretty good understanding of the time it took to create the work product necessary to implement. And ultimately our clients understood and appreciated the certainty of the fixed cost. But the interesting thing was that when we would initially provide the fixed fee amount, our clients would sometimes balk, shocked at the total amount staring them in the face. But then when we broke it down on an hourly rate basis and they realized they were getting a significant discount, they were all for it. (It would often go like this: Us: “The cost is $75,000 for the work on a flat fee basis.” Client: “That much?!??! Are you kidding?” Us: “OK, tell you what, we’ll do it for $250 per hour and it should take at least 300 hours.” Client: “Great! Let’s do that!”)

So for many, certainty outweighs cost, even though they think it’s the opposite. Many law firms cater to that notion, which allows them an easy way out when trying to determine actual costs and value. It’s pretty simple to estimate how long certain projects will take, and then multiply that number by an hourly rate, provide a small discount and come up with an “alternative” fee; but that’s not really very creative and doesn’t truly solve the cost/value challenges the client is facing. In fact, one can argue that deriving a flat fee from this foundation actually de-incentivizes a law firm; it’s going to get paid that amount no matter the quality of the work or how long it takes to complete. That being said, a strong case can be made that AFAs should be incentive-based as a core feature, and we know several clients who are utilizing those types of models. When everyone has a skin in the game, priorities become a lot more transparent. Value is, at a minimum, more apparent in that model.

At Counsel On Call and especially in my role in the E-Discovery Division, it’s pretty simple: We have to understand all of the costs of a typical project and how to make the work product better and operate more efficiently. If we don’t do that, it’s not going to matter how we package our costs because we wouldn’t be providing value to our clients. You have to take care of the former to be able to create options for the latter.

(I'd also be remiss if I didn't at least mention Patrick J. Lamb at Valorem, who posts often on the subject of AFAs.)