Complex Litigation Services (Part 2) – Typical Marketplace Options
In Part 1 of this series discussing complex litigation services, we started at the beginning: How do you define complex litigation services in the first place? There, we focused on the key roles composing a complex litigation team, including lead trial lawyers, the second-in-command, associates, paralegals, and others. In addition, we described the importance of having sufficient capacity—on the litigation team, the discovery team, or in terms of geographic scale—to handle truly national cases.
Having defined what it is that a client might buy when it comes to complex litigation services, we now turn to the natural follow-up question: from what kind of law firm can a client purchase these services?
For this, we will discuss common categories of law firms and compare them against the roles we identified in Part 1.
Additionally, we will add a few things that relate to eDiscovery specifically, i.e., eDiscovery/hosting expertise and integrated discovery counsel abilities. Modern eDiscovery takes place on sophisticated software platforms (e.g., Relativity), and requires access to, and expertise with, those platforms. In addition, integrated discovery counsel means both vertically and horizontally integrated capacity. Vertically integrated in that all the aspects of discovery—from collection to production to use of documents—are handled in-house. And horizontally integrated because the team has the ability to leverage learnings from one case into a subsequent case.
Going through this exercise will help provide clarity as to what the market looks like for these services.
Types of Law Firms
Law firms come in all shapes and sizes, and no blog post can set out a comprehensive review of all the various options in the marketplace.
One can generalize, however. For this discussion, we will put firms into several buckets, i.e., solo firms and small law firms, regional law firms, and Big Law firms. While these buckets do not cover every option, they provide a helpful contour for what the market generally provides for complex litigation options.
We will start with one end of the size scale—solo and small firms.
1. Solo and Small Law Firms
Solo and small law firms range from single proprietorships to firms that have more than one attorney but are relatively small (say, 6 – 10 attorneys). These firms tend to be hyper-local. A typical smaller firm will have just one office; if the firm has more than one office, those will typically be clustered in close regional proximity.
Many smaller litigation-focused law firms, for example, specialize in personal injury, criminal defense work, employment litigation, and the like. These are important services, and many outstanding attorneys specialize in these areas. But many of these cases, which typically have less voluminous records, fewer witnesses, and fewer dollars at stake, have different service requirements when compared to complex litigation. While some skills translate between specialties—the ability to tell a persuasive narrative to a jury, among them—complex litigation often requires the use of different skills.
Some smaller law firms do, in fact, specialize in complex litigation. A common example is a firm that started as a spin-off of Big Law, whereby a group of attorneys left to start their own niche practice. In many cases, these firms have a handful of experienced “lead” lawyers who can take a case to trial, along with some of the basic support personnel needed for complex litigation. However, given the difficulties with recruiting talented lawyers to smaller firms—including compensation limitations, law firm track record, and stability questions, and simply pure lack of brand recognition—it can be difficult for these firms to develop larger teams of talented attorneys (though exceptions exist, of course).
What these smaller firms tend to lack is capacity. The ability to handle large surges of work on larger cases can be a great stumbling block for these smaller firms. Most complex litigation requires more capacity than many of these firms typically are able to provide. In fact, in many cases, it would not be enough even if every lawyer in the firm spends all of their time on a case.. By definition, smaller firms do not have large in-house discovery teams, let alone the integrated discovery approach needed to tackle the needs of a major discovery project that always accompanies complex litigation.
In addition, these firms tend to lack national reach and can therefore be difficult to find and identify. The lack of national reach can also limit the ability of the firm to handle complex cases that have fights in jurisdictions around the country.
While they may have brand recognition in their local markets, they lack market presence in other parts of the country, making it difficult for purchasers of complex litigation services to know they exist, let alone find them to discuss a complex case.
Here is the tale of the tape:
- Lead Trial Lawyer? Likely, yes, but no guarantee.
- Experienced Complex Litigation Junior Partners / Senior Associates? Possibly, but no guarantee.
- Qualified Complex Litigation Associates? Possibly, but no guarantee.
- Complex Litigation Paralegals? Possibly, but no guarantee.
- Litigation Support Specialists? Likely not.
- Discovery Review Team?
- Litigation Team Scalability? Generally no.
- Geographic Scale? No.
- Discovery Surge Capacity?
- E-Discovery Hosting/Processing Capacity? Generally no.
- Integrated Discovery Counsel?Generally no.
- Easy to Find? Generally no.
2. Regional / Mid-Sized Law Firms
Stepping up the ladder in size, we arrive at regional firms. A typical regional firm might have 100 or 200 attorneys across its offices. These firms often have deep roots within their geographic region and likely have a number of offices and lawyers. While they often are in multiple states and multiple cities, a common feature of these firms is that their offices are clustered in one area of the country, e.g., the Midwest, the Southeast, or one of the coastal regions.
In most cases, these firms likely have at least some of the pieces necessary to run complex litigation cases. User experience may vary, however.
On the one hand, some of these firms may have “grown up” as litigation-focused trial firms and are likely to have a trial team able to run a large case at scale.
On the other hand, many have been primarily corporate-based or started with a certain sub-specialty (e.g., an energy-focused transactional firm with roots along the East Coast or a real estate firm in the Midwest). In such cases, their growth into litigation is more recent, and perhaps more limited. Unfortunately, it is difficult to separate one from the other without on-the-ground knowledge or extensive (and time-consuming) research.
On the discovery front, some of these firms will have some expertise in eDiscovery and have in-house hosting and processing solutions (and the personnel to make those solutions work). In our experience, it is the rare firm—of any size—that has a truly integrated discovery counsel team.
In either case, these regional firms tend not to have national reach.
Let’s review the checklist:
- Lead Trial Lawyer? Some do, some do not.
- Experienced Complex Litigation Junior Partners / Senior Associates? Some do, some do not.
- Qualified Complex Litigation Associates? Some do, some do not.
- Complex Litigation Paralegals? Some do, some do not.
- Litigation Support Specialists? Possibly, but no guarantee.
- Discovery Review Team? Likely not.
- Litigation Team Scalability? Possibly, but no guarantee.
- Geographic Scale? Typically no.
- Discovery Surge Capacity? Likely not.
- E-Discovery Hosting/Processing Capacity? Likely not.
- Integrated Discovery Counsel? Likely not.
- Easy to Find? Likely not.
3. The AmLaw 100
Now we turn to the set of law firms that have, on the whole, historically been the “go-to” law firms for complex litigation needs—the law firms comprising the AmLaw 100, a/k/a “Big Law.” These firms tend to be the largest in the country and include the capacity and scale of major enterprises, with thousands of employees, billions of dollars in revenue, and dozens of offices across the globe.
In almost every respect, these firms deliver what is needed for complex litigation. They have the lead trial lawyers, junior partners, associates, and paralegals necessary to support major litigation. They have the capacity to scale their lawyers to handle the difficult workloads of, for example, a major antitrust case or a multi-district litigation.
They have national reach (generally), they are easy to find (simply Google “AmLaw 100” for a list), and they are “name brands” recognized by lawyers and business people alike. To get a one-stop shop for complex litigation, this is where clients generally turn.
Despite being the “go-to,” many Big Law firms are not truly comprehensive in scope and in many cases cannot offer a true one-stop shop for each piece of the complex litigation delivery system.
The missing piece tends to be in the area of discovery. While some Big Law firms do have a specialized in-house hosting and processing arm, and most have at least eDiscovery experts and litigation support specialists, not all are able to handle the client’s data entirely within their umbrella.
In particular, many do not have a fully-integrated discovery team that can handle all aspects of discovery—from collection and data mapping, to hosting, first-pass review, second-pass review, productions, privilege logs, and everything else needed to create a defensible discovery response—without having to turn to outside help from a vendor or a staffing agency and all the headaches they bring to the table.
- Lead Trial Lawyer? Yes.
- Experienced Complex Litigation Junior Partners / Senior Associates? Yes.
- Qualified Complex Litigation Associates?
- Complex Litigation Paralegals?
- Litigation Support Specialists? Likely yes.
- Discovery Review Team? Likely yes.
- Litigation Team Scalability? Likely yes.
- Geographic Scale? Likely yes.
- Discovery Surge Capacity? Some do.
- E-Discovery Hosting/Processing Capacity? Possibly, but in some cases no.
- Integrated Discovery Counsel? Possibly, but in many cases no.
- Easy to Find? Yes.
The current marketplace of complex litigation services tends to involve AmLaw 100 firms. Before we turn to those firms, and the cost structures underlying their billable rates, we will deal with a special case—the “virtual firm.” In the next post, we will talk briefly about the pros and cons of this kind of approach for tackling complex litigation.