Can You Adapt?
Cover Story: Law Technology News
By Monica Bay
Electronic data discovery is not just raising havoc with trial strategies, risk management decisions, litigation budgets, and document retention policies, it’s also uprooting traditional support staff job descriptions in law firms, corporate law departments and vendor shops.
With EDD now a $2 billion industry that is expected to double by next year, according to the 2007 Socha-Gelbmann Electronic Discovery Survey, there's a lot of chaos as organizations try to select and use the sophisticated new technology that is necessary to conduct discovery in almost any litigation. Many trial lawyers and paralegals simply do not understand technology (and don't want to), while many IT professionals do not understand the nuances of law.
But for firms and their clients to succeed, there is no choice — they simply must adapt — and that includes redefining responsibilities. Traditional support staff roles that segregate tasks into legal (paralegals who handle document coding, deposition summaries, managing exhibits) and IT (harnessing the hardware and software) are about as useful today as floppy disks. Roles are blurring, and new titles are showing up on business cards. And there is a lot of opportunity for the ambitious.
Over the last five years, one definite trend has emerged: new roles for lawyers — as trial support staff. Firms are hiring non-partner-track staff attorneys to oversee EDD operations; using partners as ombudspersons to interface between trial lawyers and support staff; establishing e-discovery practice areas; and even spinning off subsidiary EDD companies.
Phoenix consultant Michael Arkfeld,* a former federal civil litigator, says many trial lawyers are eager to delegate anything to do with e-discovery. They are relying upon vendors, consultants and designated staff attorneys "to provide the magic wand to make it happen properly," he says. "Generally, every firm has at least one or two attorney 'champions' they rely upon to handle EDD matters. They are extremely valuable and rare."
David Baker*, chair of Chicago-based consultancy Baker Robbins & Co. (www.brco.com), is among the many observers who see more lawyers jumping to EDD management roles in law firms. What's in it for the firms? Trial lawyers want consulting-level assistance, not just technical information, he explains. They want their trial support team to understand the litigation process, deadlines, and strategies.
In corporate law departments, "techno-lawyers" are proliferating, as general counsel are "being forced to run their law departments as business units," says BRCo director David Rohde, of New York. Some GCs (and firms) are rethinking their initial impulse to outsource e-discovery. Looking to control skyrocketing EDD costs as well as stabilize internal document management systems, some are considering "in-sourcing" — handling some (or all) EDD processes internally — and want support staff who understand both law and business, and can manage vendors, says Rohde.
Here are a few examples of lawyers who have jumped onto EDD's opportunities:
• Matthew Levy* is an attorney and manager of electronic discovery and practice suppport for Howard, Rice, Nemerovski, Canady, Falk & Rabkin (www.howardrice.com), based in San Francisco.
Levy's principal duties are managing the firm's EDD and its practice support team (three full time staff); helping other lawyers counsel clients on e-discovery; managing vendor relationships; and educating firm attorneys.
"My position is officially as part of firm management," notes Levy. He practiced in construction defect litigation and medical malpractice, then worked as a contract lawyer at Folger Levin & Kahn, and Heller Ehrman, before joining Silicon Valley's Wilson Sonsini Goodrich & Rosati (www.wsgr.com) in 1998. He started there as a contract attorney, then became a staff attorney; by 2004 he had a similar title and duties as he now holds at Howard Rice, which he joined in 2006.
"What I like most is working directly with other attorneys and our clients to develop reasonable and defensible approaches to EDD issues," says Levy.
• William Kellermann now holds the Wilson Sonsini post. He previously worked for several EDD vendors, including CT Summation (www.ctsummation.com), where he was director of corporate legal systems, and as a commercial, labor and employment litigation attorney at Sullivan Roche & Johnson.
Joining Wilson Sonsini in February 2007, Kellermann oversees its Electronic Data Operations Center, established to handle client electronic evidence, from the identification stage through production and post-discovery case assessment. He provides "internal and external consulting" on EDD matters, readiness, records management, education, and second-level technical support for all litigation technology.
Kellermann reports to the firm's CIO and its litigation group leader.
• San Diego's Browning Marean,* a partner at DLA Piper US (www.dlapiper.com/us), serves as the firm's EDD ombudsperson. Marean says his role
at the firm gradually changed, largely because he is a selfdescribed technology evangelist/zealot.
"As litigation support efforts within the firm developed, I evolved into an interface role between the litigation support group and the attorneys," says Marean.
He now assists DLA Piper attorneys with e-discovery and other tech-related issues. A fixture on the EDD speaking circuit, he spends about 25% of his time at conference podiums — usually timed to visits to firm offices where he promotes technology and knowledge management.
Marean, 65, joined the firm as a summer clerk in 1968, and became a partner in 1976. He worked primarily as a commercial litigator for about 35 years, then transitioned to his technology post about five years ago.
Today, he spends about 10% of his time practicing, serving as national e-discovery counsel for several clients.
His biggest challenge? "Keeping up with new technologies as they develop."
Some firms have launched EDD practice groups, and others have gone another step — jettisoning EDD ventures into subsidiary entities:
• Hughes Hubbard & Reed (www.hugheshubbard.com) established an e-discovery practice group in 2006, co-chaired by partners Charles Cohen and Seth Rothman, both based in New York. "In addition to document productions and other e-discovery aspects of litigation, the group gets involved in
counseling clients on document management and document retention policies, and hiring and working with vendors," says Rothman. With the exception of our e-discovery counsel, who are e-discovery specialists, the lawyers in the group are litigators," says Rothman. The group consists of partners,
EDD counsel, associates and litigation support personnel. There are no plans to spin off the group, Rothman notes.
Due to increased EDD work, the firm has begun both a staff attorney progam and a litigation support group, he says. Staff attorneys are encouraged to participate in firm training, to take on pro bono cases, and volunteer for other projects as their workloads permit, he says.
• Fulbright & Jaworski (www.fulbright.com) partners Laurie Weiss, M. Scott Incerto, and Robert Owen co-chair the firm's E-Discovery and Information Management Group, which also supports internal litigators in complex matters involving EDD issues and serves as national e-discovery coordinating counsel for clients with multi-state litigation.
• Ryley Carlock & Applewhite (www.ryleycarlock.com), with offices in Denver and Phoenix, has a hybrid operation:
it functions both as a firm and a vendor, says attorney Matthew Clarke. Its Document Control Group provides EDD services to client companies; and document review, retention and national coordinating counsel services to law firms, says Clarke. He says the decision to make the DCG a standalone practice group has helped the firm recruit and retain qualified staff. "When people feel like they are part of something that is growing and is cutting edge, they tend to stick around," he says. It also helps that
the DCG "has been a good source of revenue for the firm as a whole."
• Washington, D.C.-based Howrey (www.howrey.com) has created a subsidiary, Capital Litigation Support, based in northern Virginia. (See LTN: http://tinyurl.com/65gu9e). Howrey partner John Rosenthal, who co-chairs the
firm's E-Discovery Committee and has been active with Georgetown University Law Center's
E-Discovery Institute, says the spin-off provides a range of EDD services from collection, to culling,
to hosting review of e-data.
• Lawyers have jumped ship to start independent EDD consulting firms. Among them: Craig Ball,*
(www.craigball.com), an Austin-based consultant and forensics special master, who writes LTN's
"Ball in Your Court" EDD column; St. Paul's George Socha,* of Socha Consulting (www.sochaconsulting.com), who produces the annual Socha-Gelbmann Electronic Discovery Survey; Phoenix's Michael Arkfeld (www.arkfeld.com); and Cincinnati's Thomas Allman.*
In law firms and corporate law departments, salaries have escalated with increasing demand for qualified staff. Few firm officials will speak on the record about compensation, but several provided
salary ranges. While the current economy has, due to recent layoffs, put more candidates into the marketplace, it's still predominately a seller's market as competition increases for qualified EDD attorneys.
One mid-sized firm partner says his firm pays $90- $125K a year for EDD staff attorneys and $130-$150K a year for managers, with a performance bonus. Those figures are typical for midwest and
southern firms, say observers.
If you live on the coasts, you get a bigger paycheck: full-time EDD staff attorneys at major urban firms can expect to make between $150-$300K per year, plus bonuses —with review managers commanding the biggest W2s.
A developing question is whether or not EDD staff attorneys will have billable hour requirements, for time related to client matters.
While some GCs and firms may be "in-sourcing," e-discovery, many still don't want any
part of it. So EDD vendors are quickly becoming a new career destination for lawyers.
"We have had lawyers, more commonly, paralegals, leave the firm and take jobs with our vendors," says Hughes Hubbard's Rothman. "We haven't viewed this as poaching, but as
part of natural career development."
DiscoverReady's James Wagner Jr. says his company (www.discoverready.com), which provides document review services for Fortune 500 corporations, hires many attorneys for EDD positions, particularly document review. There's a steep learning curve, notes Wagner, because "some of the technical and project management aspects
of the job are very unfamiliar" to the lawyers. "There are some differences that have to be worked through, especially as the attorneys take on roles concentrating on 'nuts and bolts' discovery services and project management."
Competition is spiking for the most experienced folks. Like their firm peers, many vendors won't publicly state their salary ranges, but most are comparable to Phoenix-based Encore Legal Solutions
(www.encorelegal.com), which pays attorney consultants between $150-$200K, with incentives that
can double the base salary — and many hires receive sign-on bonuses. On the sales side, Encore pays $125-$150K, with sign-on bonuses of $15-$25K — and a potential to double or triple base salary with commissions, says president Greg Mazares.
and has a solid reputation, the number can creep into $225-$250K," says another EDD vendor.
Salaries typically are lower outside major metropolitan areas. New Orleans-based Connie Nichols,*
director of technology with Docusource Digital Discovery Management & Trial Systems
(www.docusource-lss.com), says attorneys can expect to earn $80-$100K for full-time project
Minnesota's George Socha warns that top dollar spots — as high as $1 million a year for consulting
posts with top consulting firms — often come with a huge psychic price. These high-stress jobs often
have revolving-door turnover, and "seem to ask absolute devotion to the job," with no time for
family, he cautions. But the lure can be potent, and some successful partners bolt to consulting
jobs with vendors, hoping to hit the jackpot: "You know the drill — options, going public, huge payout."
Firms, law departments and vendors alike are turning to agencies for help finding talent. Kari
Johnson is director of business development at Chicago's Lawyer- Link (www.lawyerlinkchicago.com),
which provides temporary and permanent placement services, and also offers outsourced EDD review services at its Sears Tower facilities.
She sees "a huge surge in corporations and law firms hiring attorneys as EDD specialists.
Right or wrong, attorneys are often hired into this position because they are seen as having more
credibility than paralegals, or traditional, non-attorney litigation support professionals," says Johnson.
Many trial lawyers, she says, want an attorney to serve as a liaison with people "they perceive
as IT personnel." Some firms and law departments hire both an EDD technical expert
(paralegal) and a substantive expert (attorney) with a focus on EDD, she notes.
Attorney Andrew Jewel, vice president, national operations, of Hudson Legal (www.us.hudson.com/legal), has a similar experience. "No longer are our clients simply looking to us to assemble a review team," he says. In response to the demand, Hudson has expanded its services beyond providing review teams,
to also finding and setting up space and managing the entire EDD process for its client firms.
EDD can be a gold mine for contract lawyers who for various reasons want short-term or part-time job commitments, but contract lawyering (especially in law firms) comes with strong caveats. By definition
staff and contract attorneys are second-class citizens, say many observers, who also worry about the
effect these posts have on career opportunities for minority attorneys.
According to ALM's Minority Law Journal summer 2008 issue, a high percentage of staff attorneys are minority lawyers — filling posts where they make less money than full-time associates, receive fewer
(if any) benefits, and have little job security or real advancement opportunities. "Document review pits are a modern plantation," one anonymous attorney commented on Joseph Miller's JDwired.com blog.
An exception that may prove the rule is Hughes Hubbard. "A number of our staff attorneys have become associates, based on consistently excellent performance," reports Seth Rothman. But in most firms,
a staff lawyer position never merges into a partner track.
Contract and temp lawyers are definitely at the bottom of the EDD food chain, typically earning in the
$30-$40/hour range, with no health or retirement benefits, reports Minority Law Journal. One industry veteran, who asked for anonymity, says even those figures may be optimistic, saying in today's
economy, $25/hour is not uncommon, and sometimes attorneys who are desperate for work will take paralegal jobs that pay $15/hour.
Another factor: U.S.-based contract work may soon evaporate as fast as arctic ice caps, warns Socha: "Tomorrow, the work will go to India (or parts similar) because those positions there are well-paying, wellregarded, career track positions. Rarely, if ever, is that the case here."
In any context, the introduction of more lawyers into traditional non-lawyer support staff turf can create tensions. One large firm partner, who asked not to be identified, says the new tier of attorneys
"does cause friction. The litigation support staffers are all about getting work done. The attorneys
seem more interested in writing memos."
But Craig Foster, marketing manager of Austin's IE Discovery Inc. (www.iediscovery.com), says the
fissures in the traditional caste system help. It's much easier to deal with the friction today because
EDD vendor jobs are "a much more accepted career path for a lawyer than it was in the past,"
For non-lawyers working in EDD, roles are blurring between the traditional duties of paralegals and
litigation support staff. New non-lawyer positions are emerging, such as trial support specialist, and
project managers, there are increasing opportunities to jump ship and make more money.
Organizations such as the National Federation of Paralegal Associations (www.paralegals.org), ALM
Events (www.almevents.com), Estrin LegalEd (www.estrinlegaled.com), and Thomas Edison State
College (www.tesc.edu) are offering training to help support staff navigate the fast changing waters.
Support staff are being pulled into trial teams earlier, and everyone's now expected to be facile with
trial technology. Judith Flournoy,* CIO at Los Angeles' Loeb & Loeb (www.loeb.com), says her trial team
is "expected to be experts in e-discovery, or, at a minimum, have the ability to coordinate activities
with vendors as well as educate attorneys on best practices." They are required to be familiar with
the spirit — if not the details — of the Federal Rules of Civil Procedure amendments that went into
effect in December 2006, she says.
Baseline technical IT skills are much higher than five years ago, says Wayne Smith,* MIS director at Columbus, Ohio's Chester, Willcox & Saxbe (www.cwslaw.com). Trial support staff must be
well-grounded in computer forensics, native file formats, database systems, imaging and OCR,
transcript programs, trial presentation systems, and Adobe Acrobat. And, he says, they must be able to maintain relationships with key EDD vendors, so that they can counsel and support attorneys with the greatest impact and economy.
Chicago's Bruce Blokell, firmwide litigation support manager for Bryan Cave (www.bryancave.com),
sees "far more involvement in the front end of a matter, especially as a project consultant,"
a view echoed by numerous sources.
In the past, "the paralegals avoided the IT staff at all costs," says Dave Tiller, owner of Peoria,
Arizona's Studeo Legal (www.studeolegal.com), which offers a range of EDD services. But now,
"the more a paralegal gains expertise in the use of technology, the more valuable he or she becomes
for the organization."
LawyerLink's Kari Johnson concurs: "Paralegals can no longer expect to be hired or promoted without technical skills, database knowledge, or a general comfort level navigating computers and new
Trial support staff retention has become a critical issue, says just about every employer as they
try to swat away poachers with high salaries, perks and bonuses. LawyerLink's Johnson says several
very large firms are experiencing "major attrition" of litigation support/ EDD professionals. "The grass
isn't always greener, but when there are so many options, these professionals are choosing to find out
Chicago's Bruce Blank, director of litigation support and services, at Foley & Lardner, says getting
quality litigation support people "has been a massive challenge. Once on board, keeping them is even harder. The market keeps bidding the salary higher and higher. Most firms don't market-adjust quickly enough," he says. "We have 'No Poaching Allowed' signs on all the doors. It's not working."
Loeb's Flournoy feels the pain. Over the last two years, "hiring, recruiting, retaining has become
expensive — going for five- to six-digit salaries in some cases. . . . The nature of litigation practice
at Loeb five years ago was very different from what it is today."
Studeo Legal's Tiller says his company now offers incentive bonuses to lit support project managers
during and after projects, the company's salary structure has spiked 20% in the last five years. A key incentive, says Tiller, is that his lawyers, paralegals and lit support staff can work from home, reducing costs for both employees and the company.
But it's still cut-throat, he says. When word gets out that a vendor is having challenges or is for sale,
"the recruiters and competing vendors (vultures and poachers) are contacting employees." He cautions
peers to be extremely vigilant. "In today's market, incompetent employees can bounce from job to job, while increasing their compensation and title."
Further complicating staffing decisions are generational differences and expectations, observes
Melbourne's Michelle Mahoney,* of Mallesons Stephen Jaques (www.mallesons.com). "For Generation
Xs, a career in a law firm was respectable and could be your end destination," she notes. But today's
young adults often see legal technology jobs as "an experience, or a place to visit on their life journey, rather than their end destination." This outlook forces firms to compress technical learning and
increase practical learning.
"The ability for a law firm to milk feed young or new staff on the smaller or less complex tasks is being compromised by the very nature of EDD and transaction support. The risk factor for law firms has never been higher when dealing with corporate information."
Despite worries that the current economy may chill some litigation, or that companies will settle cases sooner to avoid expensive EDD, the general consensus is that EDD is here to stay — and is a good thing. When run correctly, and effectively, it can save both firms and corporations time, money and
resources, and help provide the golden grail: "better, faster, cheaper" services to clients.
And it will be a feeding frenzy for trial support staff. "There simply are not enough qualified EDD
personnel to go around," says Phoenix's Arkfeld.
But there are at least two major challenges confronting the profession: getting trial lawyers to accept
and understand e-discovery; and then finding and using the right tools and people.
Matthew Levy says his biggest hurdle is "finding — or teaching — that balance between technology and
the law. It is critical that litigation support staff be able to convey often-complicated technology issues to attorneys and their clients in easy to understand terms." Both firms and corporations are "increasingly relying on both litigation support professionals and tech-savvy paralegals to help bridge the gap
between IT and legal," he says.
But many trial lawyers, say experts, simply won't get their heads out of the sand. Arkfeld routinely cites surveys that consistently say that as many as 99% of practicing lawyers admit they don't understand
EDD, including litigators. Browning Marean estimates that only about 20% of active litigators have a reasonable understanding of EDD, a figure mirrored by a recent survey of in-house counsel by EDD
vendor Kroll Ontrack (www.krollontrack.com) that found that only 25% of U.S. in-house counsel, and
17% of U.K. in-house counsel say they are fully current with EDD case law, developments and regulations.
"There is still a powerful echelon who think this will either go away, or pass them by," observes
consultant Craig Ball. When they end up in a courtroom facing tech-savvy opponents, or a forensics-wise judge, or a jury that watches TV's CSI, the fireworks can be spectacular.
"Lawyers are delegating too much substantive legal impact to junior lawyers, paraprofessionals
and vendors, who end up dancing around blurred lines, because the lawyers refuse to admit
what they don't understand, or expend the requisite effort to learn it. This stuff isn't that hard —
but I've never seen anything that caused lawyers to get impatient, grasp for half-assed shortcuts, and tune out quicker." LTN
California attorney Monica Bay, editor-in-chief of Law Technology News, worked her way through
law school doing discovery support. E-mail: [email protected].
*Member, LTN's editorial advisory board and/or author, EDD Update blog (www.eddupdate.com).
Law Technology News June 2008