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Trends in the Law Part II: How Technology Has Changed Discovery

This is the second installment of our new series, Trends in the Law. This blog will focus on the ways in which technology has changed discovery.

TRENDS IN THE LAW:

Traditionally, the field of law has been slow to adapt to the technological changes happening in the world around it. When the tech revolution was sweeping other business sectors, attorneys and law firms in particular seemed to take pride in insisting that legal practice be done the “old way,” as if law could not be a profession and technological at the same time. When I graduated from law school in 1991 and was practicing at my first law firm, I tried to explain to one of the name partners the value of performing online legal research, and how unless you utilized it, you would be vulnerable to failing to find cases that could help or hurt your client. He did not believe me and angrily lectured me about being lazy. He sent me back to the “stacks” to do research that took hours (costing the client much more) and was not as thorough.

In the ensuing 26 years, the legal profession joined the digital age, albeit kicking and screaming its way into it at times. Some 90% of attorneys now report using smartphones in their practice. Most legal research is done online now, with more sources available than ever before. With a whole generation of people coming of age that do not know a world without an Internet, there is now no question of the usefulness of a computer search of electronically stored sources. In fact, electronically stored information (ESI)—emails, voicemails, iMessages, Tweets, Facebook posts, etc—and their retrieval and storage is part of the new and growing field of E-Discovery.

E-DISCOVERY

New Federal Rules of Civil Procedure require parties in litigation to preserve and produce documents that exist only in electronic form (e-documents). They are documents as described above, such as emails, voicemails, instant messages, e-calendars, and other data on hand-held devices and soft-ware. Producing, reviewing and then storing this electronic information requires new database technology, which in turn requires a new type of litigation support staff. Enter the new, tech-savvy litigation support professional.

Most e-discovery professionals have backgrounds in law, information technology, or both. Some may come to the field with a bachelors degree in science or technology, and have work experience in consulting. They all must be able to code, analyze, review and manage massive amounts of electronic data, a process called “electronic database discovery,” or EDD. The e-discovery field has grown 300% and salaries, although they vary according to a person’s experience and expertise, can be commensurate with those of the attorneys they support.

With complex litigation and global business networks, the ability of a firm to conduct e-discovery and engage in EDD is mandatory in order to remain competitive. Even for the small to medium-size law firm, however, e-discovery and EDD saves time and money and creates a competitive edge. Software programs can be used to help review electronically stored data, culling pertinent documents from an unmanageable 50,000 to 1,500 for example. Human review of 1,500 documents is both time and cost-efficient. This process is referred to technology-assisted review, or TAR.

THE BILLABLE HOUR: A THING OF THE PAST?

In addition to the way litigation is conducted, technology is also transforming the way in which attorneys charge for their services. The billable hour, the most widely used—and often derided—method of accounting for legal services was established over a century ago. Due to the changing nature of the profession and clients’ increasing desire for more flexibility, other fee arrangements are becoming more standard.

One such arrangement was famously instituted by Alcoa in the 1990s. Led by CEO Paul O’Neill then, Alcoa entered into a fixed-fee arrangement with the multinational law firm of LeBoeuf, Lamb, Greene and MacRae, LLP, for its environmental litigation worldwide. LeBoeuf Lamb opened a Pittsburgh office in order to better implement its new contract. I had the pleasure of working in that office on Alcoa’s litigation. Going from the traditional billable hour paradigm of my previous law firm to a fixed-fee arrangement at LeBoeuf Lamb was truly an amazing experience. My creativity, productivity, efficiency and morale increased dramatically because I was given the time and resources necessary to learn everything I could about my cases so that I could bring a full understanding of the issues to the table, which led to much better results for Alcoa. Not having to constantly worry if every 15 minutes of my time could be billed, I ended up producing much more cost-effective results for the client.

Clients are demanding the innovation and flexibility of time and resources that my experience at LeBoeuf Lamb proved was superior not only for the attorneys working in that type of arrangement but for the client as well. Fixed-fee, flat-fee, blended and capped are all accounting arrangements that are replacing the traditional billable hour.

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