Principles of Litigation Management
Law firms struggling with e-discovery tend to lack leadership, not technology. Litigation clients deserve to be represented by knowledgeable litigators who can provide good strategic advice, follow well-defined practices for ensuring the admissibility of evidence, and use modern technology effectively to reduce costs and improve the quality of advocacy.
Corporate clients expect a high level of competence especially in areas of high potential risk such as electronic discovery.
But where to start? When we consider the complexities of ESI, the long legacy of paper-based discovery rules, and the unwillingness of some lawyers to embrace technology, how can a firm even begin to address the issues, let alone establish firm-wide best practices?
To help firms come to grips with these challenges I have developed Ten Principles for Litigation Management. They are intended to provide a framework for change management. The framework is designed to support three basic activities within the firm, starting at the top:
- development of high-level litigation management policies within the firm
- drafting and implementation of these policies and procedures
- regular audits to ensure adoption
Although every firm should be working on its own vision of litigation management, the basic principles should be consistent throughout the profession.
- SATISFY THE LEGAL AND BUSINESS REQUIREMENTS OF YOUR CLIENTS.
The face of litigation is changing. Law practice economics is being affected. Specialist e-discovery law firms are now emerging. Offshore outsourcing of document review is now a reality. There are many threats — real and apparent — to the traditional practice of litigation, especially where documentary evidence is concerned. It is easy for a firm to get tied in knots when it comes to e-discovery decision-making.
Every law firm must always remember that its future depends on its ability to provide excellent client service. The client must come first. When that commitment is reaffirmed, lawyers are better prepared to handle complex planning decisions.
- KEEP CLIENTS INFORMED OF THE NATURE, COSTS AND BENEFITS OF ELECTRONIC EVIDENCE.
Clients do not enjoy paying bills without understanding why. And clients always want to know – and are entitled to know – what is happening on their case. They need to be kept informed about the risks, costs AND benefits of electronic discovery: how the process works, what rules and guidelines are in place, and how the firm handles strategic issues. In order for clients to be kept informed, however, lawyers must themselves have clear answers to these questions.
- COMMUNICATE CLEARLY YOUR VISION FOR THE FIRM’S APPROACH TO MANAGING LITIGATION
All change within the organization starts with leadership vision. Managing partners and litigation practice leaders must consider the short, medium and long-term ramifications of electronic evidence and decide on a clear path to the future. This vision must be communicated clearly within the firm, to clients, and to trusted business partners.
- USE TECHNOLOGY EFFECTIVELY TO ENHANCE THE QUALITY OF ADVOCACY
Firms have no trouble spending money on hardware and software, forgetting that the use of litigation technology should have two clear goals: better advocacy and reduced client costs. It’s never about the technology!
- PLAN EVERY CASE AND ALLOCATE SUFFICIENT RESOURCES
Lawyers know that they are not the best planners. But e-discovery is a new game and every case requires a game plan. Planning is simply a disciplined, structured approach to completing a project successfully. It requires a few basic but critical elements: a sponsor, a manager, a budget, a time-frame, measurable objectives, regular communication, risk assessment, and sufficient resources.
- MAKE SURE EVERY MEMBER OF THE LITIGATION TEAM UNDERSTANDS HIS OR HER ROLE
Today there is an unprecedented amount of confusion in law firms as to everyone’s proper role in e-discovery. IT people are assigned to administer client databases. Law clerks are instructed to open client’s Outlook email to find relevant messages. Administrative assistants are required to produce affidavits. Outside e-discovery consultants are sometimes seen as competitive threats and service bureaus can be treated like adversaries. Clarification of roles and responsibilities will not only ensure the highest level of competence and client service, but also boost valuable morale.
- EDUCATE, TRAIN AND SUPPORT ALL MEMBERS OF THE TEAM
This may be a corollary to principles 5 and 6 but is so often ignored that it should stand alone. When firms are slow to offer training and support, professionals suffer increased stress. The firm is unwittingly increasing the risks of a serious error that could compromise its reputation. Training should include the basics of IT, e-discovery strategy, new rules and guidelines, and best practices for new procedures such as meet and confer, document review, and search term strategies.
- CO-OPERATE WITH OPPOSING COUNSEL ON PRODUCTION MATTERS
Judges are asking you to do it, emerging standards and guidelines have incorporated it in writing, and case law supports it. On all document discovery matters including production format — having an effective meet and confer process is essential to avoid wasting client money. Document production even within the context of our adversarial system must be conducted co-operatively or it fails.
- ADOPT AND ADAPT INDUSTRY-STANDARD PRODUCTION PROTOCOLS FOR YOUR USE
Lawyers are so good at using precedents for everything — except litigation document management. Every case seems to be reinvented. Now that the Canadian Judicial Council and some superior courts have shown leadership in establishing protocols for the exchange of documents in electronic format — firms should be establishing their own customized version and using it on every case.
- DOCUMENT AND FOLLOW BEST PRACTICES FOR HANDLING ORIGINAL CLIENT ESI
One of the pitfalls of e-discovery is that most firms are receiving client data not knowing where it came from or how it was collected. This is not only a serious issue in terms of the completeness of the affidavit, but is also a serious risk to the ultimate admissibility of evidence as a business record.
Martin is quite correct in his last point (and throughout his column, I should add!) in that in all the excitement over eDiscovery, many are forgetting the end point of all this data: evidence that may need to be admitted in court.
There are many seminars, webinars, conferences and much blogging on the importance of doing the planning, preservation and collection correctly, but seemingly far less on effective review, production and admissibility of the electronic evidence so acquired. Perhaps this is something that those involved in educating lawyers (myself included) need to turn their attention to next.
I agree that the technology is certainly in place and getting better and cheaper everyday.
But there is a severe shortage of talent to manage this new technology and to provide experienced leadership to clients.
More corner office decision makers need to get involved and lead from the top on this issue.
But as Yoggi Berra used to say
“Time Takes Time”
The Cowen Group