"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.

Energetic Group for Discovery Symposium 2.0

In May 2009, we hosted our inaugural Discovery Symposium, a Counsel On Call client event for a small group of heads of litigation, general counsel and e-discovery managers. We thought that by keeping the group small it would increase the likelihood of candid dialogue about what our clients are experiencing on a day to day basis, where they are struggling, and hopefully result in some real information sharing and best practices… and to help our E-Discovery Division improve and better meet their needs.

The feedback we received from the 35 in-house attorneys who attended the event indicated we achieved these goals, and several attendees made us promise that we’d organize the event again in 2010. So not only are we hosting it again (May 12-13), we’re stepping it up a notch with what we believe is even better programming that is more tailored to the diverse e-discovery knowledge levels of our attendees.

Best practices surrounding early case assessment and technology platforms will be a significant part of the program, as will process management, collaboration, budgeting and outside counsel relationships. We’ve also developed breakout sessions for those attendees without “robust” IT departments and for those highly knowledgeable about the litigation hold and ESI policy processes, among other topics. Panelists are from companies such as AT&T Mobility, AutoZone, Cox Communications, FedEx, Fidelity Investments, HCA, International Paper, Partners Healthcare, and SunTrust Banks, among others.

The response to the DS2.0 program has been tremendous, so much so that we’ve had to cap the registrations at 55 attendees from 40 legal departments across the country. It's a diverse group of Fortune 25 corporations, mid-size companies and smaller departments and we’re really looking forward to the event.

We’re also excited to once again “live blog” from the event, so please check in next week for recaps from each session. For more timely updates, you can also follow Chad Schmidt on Twitter (others to follow are listed on the menu to the right).

If there are any questions you'd like us to pose to our distinguished panelists, we'd love to hear from you... please just post in the comments.

How E-Discovery Has Helped Legitimize Contract Work

Nine years ago when we started Counsel On Call – we celebrated our anniversary on April 3 -- we had to work our tails off just to get a courtesy meeting with a client. We spent a lot of time in those meetings addressing uninformed stereotypes about contract lawyers who ‘couldn’t get a job in a real firm’ or were ‘too lazy to do the work.’ After talking in detail about the quality of our attorneys and how they simply didn’t want the big firm life, or had another interest they wanted to pursue in addition to practicing law, or wanted to spend more time with family, we started to get beyond those initial hurdles. Realistically, most everyone we met with knew an attorney that fit our model.

I’m glad to say that many of these prejudices have dissipated over the last decade, and I’m especially pleased to see that so many talented attorneys now choose to practice law in a non-traditional way. It’s more rewarding that clients recognize this as well. Most of our clients refer to our attorneys as Counsel On Call attorneys, or employment attorney, bankruptcy attorney, corporate attorney or discovery attorney … there is certainly more awareness that not every great lawyer works in a “permanent position” within a firm or in-house. It’s helped us get to the pressing matters at hand – ways we can provide our clients with effective business solutions that incorporate low-priced, experienced and highly qualified attorneys.

So what was the tipping point? This is difficult to say. First, the attorneys who have worked with Counsel On Call the last nine years have helped change the perception of our clients. Second, once clients started working with our attorneys, they realized how easy it really was, and how much value each attorney offered. Third, our clients were willing to share their experiences with others – most of our business has grown through referrals.

Client needs have come in many forms and each has contributed to the build-up to this tipping point. Like the client who had to dispose of real estate assets within six months and needed an attorney who could motivate business people as well as draft all the documents; or the client that needed an economical way to draft and review vendor agreements; or, more recently, the client that wanted to get its arms around discovery costs so that it was in a position to budget future cases and have a repeatable process. Whatever the matter, we have worked to create a tailored solution, each of which included talented attorneys. Without our attorneys walking in the door and delivering quality work product at a significant cost savings, we simply would not be in a position to say that so many attorneys choose to practice law in a non-traditional way.

Specifically in regard to e-discovery … we saw a real need, a way to bring all the parties together so that there was clear communication and everyone was truly working in the client’s best interest. We had the resources to offer great project management and excellent litigation attorneys dedicated to discovery; and we quickly found that the efficiencies and productivity we generated versus traditional methods were substantial. Building on that success, we’re committed to creating the best processes, hiring the right attorneys, putting them together in collaborative teams, staying abreast of the latest technologies, and listening to our clients’ wishes -- and ultimately saving them a lot of money. It’s quickly become a win-win situation.

It clearly took clients working with our attorneys on employment, contracts or IP matters to begin the conversation about their discovery challenges. But as our discovery approach has been tried and tested in recent years, the result is that in-house departments now work only with companies like ours on e-discovery – or ask outside counsel to work with us -- and in the process have uncovered additional ways our attorneys and our approach can help their respective companies. So it’s been a circular route to get us to where we are today, a place where more opportunities are available for our attorneys.

Interestingly enough, recently several law firms have publicly stated that they plan to use more contract attorneys (as, unfortunately, they simultaneously announce associate layoffs). Quite candidly, Counsel On Call was originally focused on helping law firms; having practiced in a law firm I understand the economics of hiring associates. This shift is good news for in-house departments who will have more flexibility in cost containment with outside counsel – our law firm clients have been ahead of the curve in this regard in recent years, and have reaped benefits from it. And although there have been many factors at play to get to this point, there is unquestionably a direct link to e-discovery and how value became a central theme as the segment matured. Law firms have realized that their business model needs attention and, to their credit, many former naysayers are now looking for ways to fix it with their clients’ best interests in mind.

I still believe a blended model will ultimately prevail in our profession. I still believe that in-house counsel – lawyers who are forced to make budgetary decisions that revolve around quality legal representation -- will drive change (and currently are). And I still strongly believe that when outside counsel, in-house counsel and Counsel On Call work collaboratively, everyone wins: the lawyers looking for a different way to practice, the law firm partner who can get back to a true ‘partner’ role, and the client who gets the benefit of reduced costs and maximized resources.