10 Questions to Ask Your Outside Counsel (e-Discovery Edition) – Part I
In our last post in this series we discussed four ways to tackle the hidden costs of e-discovery. Building on that, we will now discuss a list of questions you should be asking your law firm before discovery begins.
Hiring outside counsel for a major piece of litigation is a big decision. As former “Big Law” attorneys we have experienced our share of beauty contests and major pitches. Here are some elements you can be sure a pitch for a case will explore: the minutia of the claims and defenses, the relevant law, the schedule, and the judge, among other items. The pitch, often contained in a voluminous, glossy PowerPoint presentation, will likely also discuss cost, often through a specific per-phase budget or a listing of attorney billing rates and discounts.
This focus makes sense, of course. You are hiring outside counsel to lead a defense or prosecute a case and the merits and cost of doing so should be primary points of discussion.
But we think an important part of the discussion is often missing—a detailed look at the discovery process. In our experience, discussions that ignore this part undervalue the role of discovery in impacting the cost of your case, as well as your chances at obtaining a successful outcome.
One reason for this lack of attention to the discovery process is that it is hard to evaluate the question. How do you know whether an attorney, or team of attorneys, is any “good” at discovery? After all, there are few public data points to determine whether the attorney-in-charge of discovery has the right set of skills. Contrast that with trial counsel where public dockets, and often their own website, will tell you the cases they have appeared in, their wins and losses, their experience, and the like. From this, you can pull together a reasonable picture of their talents; the same is not true when trying to find information needed to help judge the member of the team running discovery.
Because of this relative lack of publicly available information, the pitch process is a critical opportunity to explore the talents and methodology of the firm’s discovery team.
Accordingly, we have put together a list of questions that will allow you to better explore your outside counsel’s attention to the discovery process. These are not items that pitching counsel will usually raise on their own, but they should be. This post covers the first 5 questions—the next post will cover the remaining.
Question 1: Which Specific Person Or People On Your Team Will Be Responsible For Managing The Outside Document Reviewers, And What Kind Of Experience And Skill Sets Do They Have In Managing Review Teams And Holding The Line On Costs?
Why it matters: This is the basic starting point, but one we don’t see explored very often by clients or law firms pitching for the case. The person managing the discovery process is one of the most important people involved in a given litigation or investigation. Efficient execution of discovery management tasks will not only increase the chances of a favorable outcome but will also keep costs from spiraling out of control. Often at a Big Law firm, the lead partner delegates discovery management to someone far more junior. Evaluating the talent of this individual for managing discovery can be difficult. That said, don’t be shy about asking for references for this individual (or team)— making sure you have the right attorney in charge of discovery will save you money in the long run. Ask direct questions about who will run discovery, their abilities, and experience.
Question 2: How Skillful Is Your Team With Using The Electronic Tools Used For Reviewing Documents?
Why it matters: This is one of many hidden cost drivers in any discovery project. Your Big Law team almost certainly has used one of the major electronic review platforms (e.g., Relativity), but are they adept at using all of the tool’s features to navigate a database? We have seen plenty of Big Law attorneys who know little more than how to simply click and code a document. If you don’t know how to use every available tool to slice through data, create searches, and generate efficient review workflows, you’re adding unnecessary cost to the discovery process. Knowing how to create searches, download documents, or perform basic tasks on review tools like Relativity are not skills that every talented attorney winds up developing, and many simply have not had enough software-specific training to use these tools effectively. Occasionally, this lower level of skill has only a small impact on cost, but sometimes the lack of technical ability rears its head at the wrong possible time—unnecessarily slowing up a time-sensitive project, increasing cost, or resulting in missing important information or connections. Look for a team with strong skills in leveraging all available technology.
Question 3: What Is Your Quality Control (“QC”) Methodology For Outside Review Output?
Why it matters: A poorly thought out QC methodology typically leads to a drastic increase in cost. For example: Is the case appropriate for an expensive and time-consuming document-by-document QC process by Big Law counsel? Can you create a reasonably thorough QC process by using statistical sampling methods? And crucially, how well—and how quickly—can you provide in-the-moment answers to reviewers’ questions and provide real-time feedback? Handling issues during the review can significantly lower costs compared to trying to fix problems afterward. If your Big Law team has a well-planned QC methodology at the pitch stage, that’s a good sign that they know their way around the block and that you’re going to get good value from their efforts.
Question 4: How Familiar Are You With Your First-Pass Review Team (Or Better Yet, Your Discovery Counsel) And Why Do You Recommend Them?
Why it matters: In the document review context, familiarity often breeds efficiency and big cost savings that arise from that familiarity. New or untested teams inject uncertainty and risk, increasing error and duplication costs. The importance of a team familiar with one another was discussed in a previous post in this series.
Question 5: Will Your Malpractice Policy Cover The Reviewers’ Work?
Why it matters: The use of outside vendors providing first-pass reviewers for a particular project is a relatively recent legal malpractice phenomenon. These vendors are not law firms (they are more akin to staffing firms) so they don’t carry legal malpractice insurance. If your outside law firm is retaining the vendor and controlling their work—and they should be—then the firm’s malpractice should cover the work. But be sure to confirm this. Also, as an in-house lawyer, be wary about hiring the vendors directly. If you are the lawyer controlling their work, your company’s malpractice insurance (if any) may not cover them in the event something goes wrong.
Law firm pitches are the time to decide who will represent you in the case. Focusing on the team’s ability to lead on the merits of the case is critical. But don’t forget to focus on the management of the discovery process and its impact on reducing costs or getting to a winning resolution of the matter. When discovery often accounts for the vast majority of the spend on a given matter, the importance of a diligent and organized discovery process, led by experienced and efficient attorneys, cannot be understated.
In Part II, we will discuss 5 more questions you should ask!
If you have any questions about this post or any in the series, or if we can help with an upcoming review or discovery project, please contact us via [email protected] or click on the button below.