Ethics of eDiscovery: The Contract Attorney, Part 2

In my last post it may have seemed a little harsh to generalize every contract attorney as being disgruntled or listless and I apologize for this.  There are CAs that are motivated, hard-working and happy.  With that said, these are not usually the people you worry about when doing doc review.  The fact is, your team is only as strong as your weakest link.  Your efficiency rating is dependent on every variable that goes into a project, and even if you get all the docs right, it doesn’t mean it was efficient.  Almost every project I have worked on could have been done better.  In fact, that’s the way you should approach each project.

Ok, so you can easily weed out the slow or poor quality reviewers from the efficient, hard-working ones and problem solved right?  Not necessarily. Running an eDiscovery project is as much about the technology, office space and skill, as it is about resources in staffing.  First, if you get an influx of work, you need to be able to call upon more CAs.  Second, that work request could be only for CAs with particular experience, which in turn the client is willing to pay for.

The problem is that there are hard-working CAs out there – a lot of them.  But they become disgruntled and listless due to one question: WHAT’S THE POINT?  What is the point?  Because of staffing needs and the difficulty in plucking adequate talent, there are a lot of differences between your best reviewer and your worst  – much more than the difference between your best junior associate and your worst.  The fact that a CA, applying for a project, has years of experience in electronic doc review, doesn’t really tell you much.  It’s not like if you have 3 years in Bankrupcy law or M&As, where the employer at least has an idea of minimum competency.

If Ray is a good reviewer, his reward will typically be more responsibility, not likely more money.  He will be expected to train and QC the new and incompetent ones.  This will not place Ray on any sort of career track, nor will it benefit him much when he moves to the next project – only to start all over.  Ray sees Allen who makes the same wage, but is a 1st level reviewer with no clear understanding or care about the documents in front of him.  Both make the same.  Both remain at the same place career-wise.

So why don’t the law firms or project managers weed out such reviewers?  That’s a great question.  One problem is a lot of eDiscovery projects don’t have real eDiscovery PMs who are trained in cost-effective measures, but instead those who are trained in how the firm does business = a) Bill the client; b) Justify it somehow.

But they at least use metrics to measure productivity?  This is true.  However, the threshhold for competency is so low on a lot of doc reviews, most reviewers will make the cut, with the client totally ignorant of where the competency line should be.

What this adds up to is the project hopefully reaching the quality goal without giving any consideration for cost-effectiveness.  So it works like this.  The incompetent CAs go through the documents.  All are re-reviewed with a lot of changes by the more competent CAs.  Usually a 1st level reviewer can reach his quota of docs, and as long as he sort of gets it, he stays on the team.  He’s not there to boost quality production, but to pile up hours.  And there’s the rub: 

1. Keep inefficient reviewers on a project that mandates an unacceptable threshhold of competency.
2. Allow the efficient reviewers to clean up the slack and turn the subpar work into quality work.
3. Essentially, an “ethical” form of double-billing is created due to project management guidelines based on quantity and quality, not quality and expediency.
4. The more quantity, the more the firm, and staffing agency, get paid. 

If a project had CAs, who were all competent, with incentives, working in a streamlined management system based on quality and efficiency, the work would be done better and faster.  Common sense tells us that, yet the wool has been pulled over the eyes of many corporations for years.  Those times are changing.  It’s time to understand the need for security in the workplace.  It’s time to reward those for work well-done. 

If you reward the intelligent, hard-working CAs, you will get a more competitive and specialized labor force.  Build wage increases into the project model.  If you can pay $35/hr. on a project, start them all out at $30.  Offer the opportunity to move to $40/hr.  Offer the opportunity to become a staff attorney.  Of course, we have to bring in the third party to help effectuate these changes.  Next up:  The Staffing Agency…

Patton Boggs to Outsource IP Work to CPA Global

Per PRNewsire, Patton Boggs has contracted CPA Global to perform IP docketing services.  This plan of action will allow Patton Boggs to manage costs and hand the savings over to the client.  Without having to hire and train employees, this allows Patton Boggs to not only keep costs down, but keep focus on the client.  On the flip side, this is a huge account for CPA Global as PB is one of the top 100 law firms and among the top patent firms in the US. 

Interestingly enough, the outsourcing will remain on-shore with CPA Global’s docketing specialists.  I figure CPA has shown the ability to do quality work, while maintaining a high-level of security and confidentiality.  The contract keeps jobs in the US, which is a good thing, because of the high-level of specialization, as well as security needed to maintain such a service.  So while we see outsourcing heading towards India, there are still plenty of legal services of a certain nature that cannot be performed outside of the US.  However, with the development of the Indian legal education system, I would not be surprised for such specializations to be offered in the near future.