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					Page 26                                                               The Metropolitan Corporate Counsel                                                         January 2011


Taking The Value Challenge Beyond Law Firms And Clients:
Making Your Electronic Discovery Providers Step Up
             Jon Resnick                                                                    4. Communicate well… and often              tively suggesting alternatives, e-discov-
                                                                                                One of the particular challenges of     ery providers can demonstrate their
          APPLIED DISCOVERY                                                                 electronic discovery projects is their      willingness to try new approaches. In
                                                                                            tendency to fluctuate in size and scope      addition, e-discovery providers should
                                                                                            with frequently changing deadlines. A       be open to client suggestions in this
    Even before the economy deterio-                                                        judge may set a new deadline, or the        area.
rated, the Association of Corporate                                                         team may find that it makes sense to         8. Use good technology, and use it well
Counsel began seriously examining the                                                       adopt rolling deadlines as discovery            As technology has exploded, organi-
value relationship between law firms                                                         evolves. By communicating frequently        zations are struggling to keep pace with
and their clients. Since the ACC Value
                                                                                            with attorneys and other key stakehold-     the volume of data and information that
Challenge program’s official launch in
                                                                                            ers, e-discovery providers can allow the    is now discoverable. So it’s time to turn
September 2008, the financial struggles
                                                                                            client to adapt to the new schedule or      technology to the advantage of the
of many law firms have only intensified.
                                                                                            make decisions with as much notice as       client by leveraging technology to the
In this environment of corporate fiscal
                                                                                            possible.                                   extent practicable. Electronic discovery
duress, the core ideas behind the Value
                                                                                            5. Bill transparently                       providers can bring a unique value here,
Challenge continue to resonate, high-
                                                                                                E-discovery providers should have       since many law department and law
lighting the disconnect between the
                                                                                            transparent billing systems and flexible     firm attorneys don’t have the time to
value and cost of legal services and pro-
                                                                                            billing practices. For example, rather      become experts in cutting-edge, discov-
moting the belief that law firms can
                                                            Jon Resnick                     than simply telling clients how they will   ery-specific tools. Automating when-
improve the value of the services they
                                                                                            be billed, e-discovery providers should     ever possible is one way to greatly
offer while reducing costs … and oper-        vagaries of a jury, represents one of the     work with clients to customize an           increase efficiencies. New early case
ating at profit.                               great unknowns. What isn’t in question        approach. For some clients and some         assessment tools can substantially
    Those law firm profits remain a
                                              is that the costs are high. According to      matters, a per-document rate may work       reduce the size of the data set required
major sticking point for corporate legal
                                              the 2010 Socha-Gelbmann Electronic            better, while others may prefer a per-      for document review. “Review analyt-
departments and the organizations they
                                              Discovery Survey, the value of the e-         gigabyte or even an hourly rate.            ics” can further speed and lower the cost
work for. The ACC cites a statistic from
                                              discovery market in 2009 was about                                                        of document review by tracking the pro-
the California Bar Journal: in the last                                                     6. Improve efficiencies
                                              $2.8 billion, a 10 percent increase from                                                  ficiency and efficiency of the review
10 years, non-law firm costs have                                                               When rethinking their value proposi-
                                              2008. And according to the survey, costs                                                  team – and individual reviews – in real
increased by 20 percent. During the                                                         tion, e-discovery providers must keep in
                                              for e-discovery were set to rise between                                                  time.
same period, however, large law firms                                                        mind that the goal is getting the job
have increased their rates by 75 percent.     10 percent and 15 percent in 2010 and                                                         While most of the talk about the
                                                                                            done as efficiently and cost-effectively     Value Challenge has revolved around
    The Value Challenge takes aim at          2011.
                                                  By demanding clear budgets and            as possible. So it’s important to always    law firms, e-discovery providers are
that disparity by urging attorneys at law                                                   seek efficiencies and ways to lower
firms and legal departments to funda-          estimates early on, or as soon as practi-                                                 perfectly positioned to create their own
                                              cal, in-house counsel can be sure they        costs – and proactively present these       unique value propositions, and corpo-
mentally rethink their relationships                                                        suggestions. Like a law firm, e-discov-
based on the value that the client ulti-      understand the scope and cost from the                                                    rate counsel should demand that they
                                              beginning of a lawsuit or investiga-          ery providers can sometimes gain from       do. Providers have extensive experience
mately receives, rather than an hourly                                                      inefficiencies. Counsel should continu-
rate, cost per project or the firm’s prof-     tion.The more detail providers can offer,                                                 and knowledge of discovery, and clients
                                              the better the quality of the decision-       ously demand – and providers should         should be the beneficiaries. However,
itability (see sidebar).                                                                    proactively suggest – better processes
    “Value from the corporate perspec-        making by in-house counsel. For exam-                                                     the dialogue cannot be one-sided. It’s
                                              ple, a client faced with potentially large    and tools to lower overall costs.           important to discuss and brainstorm
tive means receiving a solution that
                                              expenses for an e-discovery matter may        7. Suggest alternative fee structuring      with everyone involved, from in-house
addresses the client’s problem – for an
                                              decide it is cheaper to quickly settle,           Many in-house counsel tire of being     counsel to IT staff to law firm attorneys.
appropriate cost,” said Association of
                                              rather than slog through discovery only       the ones to ask providers for alternative   By being open to new ideas and
Corporate Counsel GC Susan Hackett
                                              to settle later on.                           fee arrangements and other ways of          approaches, e-discovery providers can
in an American Lawyer interview.
                                              2. Hire the experts                           structuring billing and work. By proac-     truly tackle the value challenge.
    The realm of e-discovery, like that of
all legal services, requires a re-evalua-         Offering in-depth knowledge and
tion based on the ACC’s cost-value            expertise is another way that e-discov-
equation as an “appropriate cost,”            ery providers can demonstrate value.                                 Covenant With Counsel
which has not traditionally been associ-      Many in-house counsel, particularly at             As part of the Value Challenge, the Association for Corporate Counsel has
ated with the discovery process. A            smaller legal departments, act as gener-        created the “Covenant with Counsel.” Highlights include the following: we will
dreaded budget line item, discovery has       alists. They know a little bit about a lot         • Learn your business and strategic objectives and apply that understanding
a reputation for being unwieldy and           of different areas of the law. Counsel          to your matters.
inconvenient, with the potential for          should be able to rely on e-discovery              • Give honest feedback on whether your objectives in a matter are realistic
costs to spiral out of control. This is not   providers to help fill the knowledge gap         and attainable.
without merit, as many cost-drivers           by offering education and explanations             • Use the most appropriate staffing and tell you if we don’t have the needed
(time, technology, supervision) are           regarding the latest trends and court rul-      expertise.
compounded when managed internally            ings in the discovery realm.                       • Designate one lawyer to serve as our relationship manager, whose time
by legal teams not accustomed to the          3. Prioritize project management                will not be billed for this role.
discovery process or by external ven-             Solid project management can make              • Proactively offer value-based alternative fee structures.
dors adding numerous hidden costs             all the difference, both in quality control        • Provide budgets and estimates for specific engagements up front and
after a deceptively low initial bid.          and in cost management. An outstand-            advise you immediately if there may be any material changes.
    As such, it is reasonable to expect e-    ing project manager, combined with the             • Understand that we are responsible for our budgets and estimates and that
discovery providers to create more                                                            our experience forms a basis for accuracy.
                                              right technology, ensures that projects
value for clients within a reasonable                                                            • Seek to reduce our costs creatively and constantly, and share those savings
                                              are handled efficiently, cost-effectively
budget while maintaining a strong bot-                                                        with you.
                                              and on time. The right PM can make the
tom line. Here’s how, in eight easy                                                              • Understand that you seek neither elegance, new law, nor perfection unless
                                              difference between success and failure          these provide value consistent with your company’s objectives.
steps.
                                              on a given discovery project. Counsel              • Train our associates efficiently and effectively without imposing additional
   How to Demonstrate Real Value              should know who will be running the             and unwarranted costs on you.
1. Establish expectations                     project before it starts and shouldn’t be          • Never “reinvent the wheel;” we will look first to past work product and
    For many organizations involved in        afraid to ask for project management            encourage efficiency and continuous improvement.
litigation, e-discovery, along with the       credentials. Counsel should also not               • Not ask for blanket conflict waivers and discuss with you any client or
                                              expect to pay an hourly fee for project         issue conflicts.
Jon Resnick is Worldwide Vice Presi-          management as ensuring that projects               • Use technology to our mutual benefit, including billing.
dent, Field Operations and Marketing,         are managed efficiently and on time is              • Meet deadlines and keep in touch.
Applied Discovery.                            just part of the new value proposition.

                            Please email the author at jon.resnick@applieddiscovery.com with questions about this article.

				
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