Lean and Mean Litigation Blog

CORRECTION - ON GET THEE TO A COURTROOM

For those of you who may have automatically received a post from this blog entitled "For Aspiring Litigators - Get Thee to  A Courtroom", as you may have surmised, this was not supposed to have been posted yet.  It was merely a very incomplete draft and was inadvertently posted due to my being bed ridden with this spring's head cold.  At some point I will complete my thoughts on this and then perhaps you will understand what my rather cryptic notes actually mean.  My apologies.

The Faustian Deal and Why We Litigators Must Change The Way We Practice

Perhaps because I have a son who is about to enter the profession and perhaps because he is a coveted recruit, I write this post as a small and quiet call for a new paradigm in the treatment of litigation associates and, in turn, a new paradigm for how law is practiced.

I am, of course, speaking in generalities, but these observations are nevertheless generally true.  The legal profession and, in particular, the large to mid-size firms, are doing an abysmal job in training their litigation associates to become trial lawyers.

Firms are now completely driven by the bottom line.  It controls all that is done.  Lure top associates with ever increasing starting salaries in order to lay claim that "our firm attracts the best talent."  Work those associates to death on make work tasks to pay for those salaries and to produce the profits necessary to keep up with the Jones to maintain or raise "profits per partner" in order to keep and lure supposed rainmakers.

The result - few if any private sector associates are gaining any concept of the big picture in the cases they work on.  They are given zounds of projects to work on as part of a larger group of pyramided lawyers in various matters. But how many are actually an integral part of any case's litigation team?

It is the rare [very rare] exception where a firm staffs its cases with small teams; where the associates work closely with a senior partner on all aspects of the case. As those who have read my other posts or who have read my articles know [go to my web site for the articles], even the largest cases are more effectively run with small litigation teams.  It is the best way to win and it costs less for the client.  It is also the best way for young lawyers to develop the skills they will need to be case leaders.

Top law graduates - intelligent as they are - accept the current Faustian deal only because the money seems to be too good to pass up.  But as everyone knows, most associates will be gone within 4-5 years, and most of these young litigators leave with little if any marketable skills.  Few have even taken a deposition let alone participated in any meaningful way in a trial or some other form of contested hearing.  Those that stay have limited skills for their years and this experience lag continues - with some "litigation" partners at large firms never having tried a case either as a first or second chair!

How could so many smart people act so stupidly for a few extra short term dollars?

There is only one end point for this trend - eventually the only people capable of trying cases in large firms are going to be former USDAs or State's Attorneys.   But there are not enough USDA or State's Attorney jobs available to provide the training for the private sector's needs.

Moreover, let me tell you a little known secret - there is actually an art - unfortunately a dying one - to handling large complex civil litigation matters that one only learns from doing them in the private sector.  So even government trained attorneys - while having a leg up on their private sector counterparts in terms of courtroom experience - are at a disadvantage when they come up against seasoned private sector civil litigators who know what they are doing.  For example, it is one thing when you have the FBI gathering your evidence for you and another when you have to do it yourself.

Those firms currently drunk on the short term revenues from this inefficient pyramid are going to be in for a rude awakening based upon simple economics of supply and demand.

On the supply side, law school graduates aspiring to be litigators are going to get smart and realize that  they are better off tightening their belts in their early years and gain in the trenches trial experience at a smaller firm [say a litigation boutique] where, to borrow a phrase, rather than giving them a fish the firms teach them how to fish.  There are already supply side organizations cropping up such as "Law Students Building a Better Legal Profession" [click here] that are starting to confront the issue of the quality of associate life and training.

Yet, it still amazes me how the herd mentality takes over for most the top law school grads.  How else can one explain seemingly intelligent people who, for a few extra short term dollars, knowingly squander all that they have worked for to be worked to death for 4-5 years and walk away with few meaningful marketable skills.  It is a losing proposition.  If it were a case it would be dismissed out of court.

Here is absolute rule no. 1 for soon to be law school grads who aspire to be litigators - if you want to have personal autonomy [e.g. control your career arc] make sure that where ever you land you are going to be given the opportunity to (1) take and defend depositions and argue before courts within your first 2-3 years and (2) try cases as second and first chair within the first 5 years of your practice.  Ask the associates who interview you how many depositions they have taken and defended.  Ask them how many trials they have worked on and what they did. 

They may not like these questions, but if you intend to make a career out of asking the right questions, it makes sense to do so when you are making an important career choice. You are entitled to know these things.  If someone is going to hold it against you for asking these questions then you should think twice about why you want to work at such a place.

For those litigation associates who now realize that their high paying jobs are on a track to nowhere in terms of skill development, get out. Get over the prestige issue and get over the money thing.  Nine years out, no one will care where you spent your first years of practice if don't have needed skills, and whatever money you made upfront in your early years will be quickly lost in diminished earning capacity later on.

On the demand side, as large and mid-size general practice firms' development of litigation talent continues on its diminished trend, more and more top flight litigation boutiques are going to become the norm - not only because smart law school grads who want to become real trial lawyers are going to flock to them but also because clients big and small are going to prefer to hire these firms.

In short, unless this trend reverses and large firms pay attention to something other than short term profitability, the marketplace will dictate a division -  where the best/most talented litigation firms and departments will be litigation only firms. 

The trend has already begun - pioneered by firms like Susman Godfrey and followed by firms like Barlit Beck.  Yes, these firms are uber versions of litigation only firms that currently have the luxury of selecting only the cream of the crop law school grads.  But one should not write them off as one hit wonders - firms that only arose because of the unique abilities of their founders.

There is a valid business model behind these firms, why they are so successful and, most important, why they are more sought after than large firm litigation departments time and again.  The model is quite simple - they get the talent, they develop the talent, and,as a result, they provide a better product.

The model is being successfully followed.  Numerous complex litigation boutiques are sprouting up in every major metropolitan area.

Will the litigation boutique overtake large firm litigation departments in my lifetime?  Probably not.  But having litigated my fair share of antitrust matters, I am a firm believer in the marketplace. You don't have to be a Nobel Laureate economist to understand that both the supply side and demand side may very well seek an alternative when law the large firms fail to provide what both sides want.

WHAT IS ALL THE HUBUB ABOUT E-DISCOVERY?

We have all seen them - various consulting firms advertising their new software programs for e-discovery consulting services.  Some of them even provide testimonials from various major firms - about how this or that consulting firm or this or that software is the way to go. [click here for one such example].  Better yet, click here to read an exemplar of an advertisement from one such e-discovery  firm. Perhaps someone can explain in the comments section below this post what it is that they are talking about that distinguishes what they are offering from what the IT people in a company can provide.  Better yet perhaps someone can explain in the English language what they talking about at all.

As an adjunct to e-discovery consultancy, law firms in turn are creating new practice groups specializing solely in e-discovery issues.

To all of this I say, "What the heck is going on here?"

Maybe I am just a "Caveman Lawyer" like the popular SNL character but I will tell you what I think is going on here - money.  With the advent of the new federal rules governing e-discovery, consulting firms and law firms found a new way to make money.  Some serendipity for them fueled this false demand.  Several high profile cases where companies were sanctioned for failing to produce documents - most notably the Qualcom debacle - scared the wits out general counsel.

But the Qualcom matter had nothing to do with a mere failure to find and produce.  It involved conscious or at least reckless disregard by both outside and in-house counsel in not producing highly damaging documents that completely undercut the core of their case.  The documents were readily available in an important player's email files if anyone had asked. [Click here for article summarizing the Qualcom episode]. Yet, this example along with other scare tactic marketing has thrown many large companies and their in-house counsel into a frenzy over making sure that they are not the next Qualcom.

Let's set something straight first - the new e-discovery rules are not anything really new.  The obligations articulated in these new words are merely more detailed descriptions of the obligations that any litigant had under the old version.  When you sue or get sued, you had better make sure that you put a hold on the destruction of any and all documents that might be discoverable or relevant to the lawsuit - hard copy and electronic. This has been the rule before the new e-discovery rules were adopted and it is the rule after their adoption.  And when you produce documents you better make sure that you produce responsive documents.

Yet, after the adoption of these rules consultants and law firms have begun drumming up business under the guise that somehow there has been a sea change in the playing field that must be addressed.  Whatever change occurred had nothing to do with the rules change.  Instead, it has had to do with the way business has been generating documents over the last decade or so.  Business is done electronically.

So the real question is not what should you do under the new rules, but rather what should you do with all of these electronic documents that are now generated.  It turns out that it is really not much different than what we used to do when we only had hard copy documents to deal with.

In the "old days" before electronic documents, we would go to the all the people who might have touched the issues in the case and have them provide their files to us.  A copy would be made and preserved.  We would go to the document custodian and have them pull any stored documents that might pertain to the case (e.g. stored files of the persons with knowledge or general files that might pertain to various issues in the case).

Relying on outside consultants to pare down the documents produced based upon word search protocols [something that they seem to marketing as a cost saver] is going to be the next Qualcom.  Word searches are nice for purposes of your own culling to determine what documents are of interest.  But this is a dangerous gambit when it comes to determining what should be produced.  The better safer and more cost effective approach is to be over-inclusive in what you produce and make sure that you enter into a standard protective order that provides for the return of privileged materials.

Do you need to hire a consultant who specializes in e-discovery, buy their software or pay for another partner within your outside counsel's firm who is supposedly expert in e-discovery?  I don't think so.  But it is your money.

It just involves getting the head of IT involved as soon as you are aware you are going to be or are involved in litigation.  Your IT people are the new document custodians of the electronic age.  You still have to obtain all hard copy but you now also have to obtain all currently maintained electronic material from the persons involved in the subject matter [on their computers and anywhere else that it might be stored] and anything that is maintained within the company's computer files that might relate to the issues in the lawsuit.

What can a consultant give you that is better than the IT people in your company?  Presumably the IT people will know off the top of their heads where all the nooks and crannies are that need to be searched in your database(s) and to the extent that they don't some basic questioning by litigation counsel should do the trick.  This along with making sure that your IT person keeps a clear record of what has been done should provide you with the assurance that you comply with your discovery obligations.

If you require that the documents be precisely culled down so that only responsive documents are produced [a bad/dangerous practice in my view] then there is only one way to do that and this is through actual human eyes looking at the documents.  Anything else - like relying on a computer based search protocol and you are exposing your company to risk of Qualcom sanctions or worse.  Using a consultant who performs supposedly industry standard searches will not alleviate you from your burden to produce responsive documents and the failure to do so - without eyeballing the production with human eyes - could have Qualcom like consequences.  That is why being over-inclusive in your production is a better and more cost effective practice.

If you can't understand what it is that your e-discovery consultant is talking about, that should give you pause for concern. So take a breath and realize that even though this is the electronic age it still is not rocket science when you are confronted with e-discovery.  Common sense and practical approaches are still the best way to ensure that you comply with discovery demands.   At least until courts definitively rule that following the guidances of outside e-discovery consultants is a protective shield, to do anything other than this could expose you to the sanctions that you so earnestly are trying to avoid.

Exhibit No. 1 ON WHY OUR PROFESSION HAS LOST ITS WAY

I don't know why others went into the practice of law but here is why I did.  It provided me with a career that included intellectual stimulation and challenge, while at the same time would, if I worked hard, provide me decent remuneration.  My parents were both professionals.  So I came to appreciate and respect the non-monetary pleasure that they derived from helping people with their intellectual abilities - from well heeled businesspersons to school teachers to laborers.

This was the ethos of a professional that I understood.  The primary driver was helping clients.  The pleasure was in employing your intellect to do so.  And the money was something that would come along as a result.  Not necessarily big bucks but enough to live comfortably - very comfortably. 

Granted,  there are and have always been lawyers who made big bucks - sometimes equivalent to their business counterparts.  But those were entrepreneurial lawyers who took risks equivalent to those on the business side.  But when one enlists to be a professional the money should not be the sole driver.

Click here to read an article, "The Bottom Line on Client Analysis", that is further evidence of why our profession has lost its way.  One would think that by its title this article was about how to better serve one's clients through better analysis.  But like the book in the now famous Twilight Zone, entitled "To Serve Man", you are in for a surprise.

It is an article discussing techniques for how firms - presumably the larger firms - can, like their accounting and management consulting counterparts, better analyze which clients or practice areas are providing them the most "realization" - e.g. which clients or practice areas are the most profitable. Presumably this is so the firm can weed out the less profitable clients, practice areas, or lawyers.

What is going on here?  Lawyers are now striving to adopt business models similar to our "counterparts" in accounting and management consulting?  Since when were they ever our counterparts?  We are lawyers. We are not accountants and we are not management consultants.  Or are we?  I hope for our sake, for the sake of the profession, and for the sake of our country that this is not true  [yes I do believe that the private attorney tradition of our country distinguishes it above every other democracy in the world].

If a client retains a law firm at an agreed to level of compensation acceptable to a particular lawyer in that firm and then pays the bills, what else need be analyzed?

What is going on here is that those running law firms and those that advise them are turning the practice of law into a business to the exclusion of everything else.  Clients are no longer individuals in need of our professional assistance.  They are pieces of meat that law firms engorge themselves on so that each firm can keep up their profits per partner.  Likewise, the most valued lawyers within firms are no longer the high quality professionals - rather the most valued are those whose "realizations" are the highest.

This is yet another example of the New Yorkification of the practice of law. "Bonfire of the Vanities" on steroids.  Some day clients - big and small - are going to realize that the only outsourcing they need do is to make sure that they outsource their legal work to firms who are no longer trying to keep up with the New Yorkers.  It will be a better day for clients and for the practice.

Lean and Mean Blog's Author Starts A Series Of Articles In "Corporate Counselor" Discussing How To Better Manage Litigation Costs

Time to blow my own horn a little.  Starting in this May's issue of The Corporate Counselor, an ALM newsletter subscribed to by approximately 4,000 general counsel across the country, this blog's author will  commence a series of articles detailing the basic principles that general counsel can and should employ to better manage their litigation matters - from both a cost and end result perspective.   These principles, of course, also apply to anyone who has to hire litigation counsel.

Rather than being comprised of nebulous fad concepts [e.g. RFPs (in the end merely a gussied up litigation budget) fee caps (a scary proposition for any client and really just another litigation budget under a different name)]promulgated by legal consultants who have never stepped foot in a courtroom or hollow claims about lean litigation practices by law firms whose current business model is based upon making profits off of having to increase the billable hours they charge their clients, the principles that are articulated in this series are based upon a simple common sense understanding of what litigation is all about and what general counsel (or anyone for that matter) need to do in order to better manage their litigation matters - regardless of the size or purported complexity of the case.

The principles discussed are ones derived from my over 29 years of in the trenches experience litigating with and against some of this country's best trial lawyers - where I have seen it all - from efficient best practices to bloated over-litigated efforts.

The first article discusses who to hire as outside litigation counsel and how to properly set up your litigation team [click here for full article]. It essentially conforms to my view that the best litigation teams are small - one to five lawyers - no matter what the size of the case in terms of dollars and that unless you have a commitment from the senior lawyer that you are hiring to head up the case that your matter is going to be one of their top one or two priorities then hire someone else - you don't want or need a high profile hit and run litigator heading up your case - you need someone who is going to live your case and treat it with the importance it deserves.