It occurred to me recently what unusual specimens some of my partners are. Oh, they look ordinary enough – some tall, some not, some female, some not. What is unusual is that they are an entirely new breed of attorney. Unlike most of us that have made our living through litigation, some of these lawyers have never drafted an interrogatory response, never argued in response to a motion to compel, never taken a deposition, in short, never done any of the things that we ordinarily associate with litigation. What kind of lawyers are these, you ask? They are e-discovery lawyers, born and bred, and I am not certain that we all understand just how remarkable that is.
Their entire careers have been spent working in the area of e-discovery. Some of them started, as so many talented young lawyers must these days, reviewing documents as contract attorneys. From the dozens of their peers, they distinguished themselves by their intelligence, their understanding of technology, and their innate ability to grasp the importance of process in document review. As a result, each was given increasingly more difficult types of work and, ultimately, hired as an associate. Just as the field of e-discovery continued to evolve and mature, so, too, did these e-discovery lawyers. In addition to keeping abreast of the emerging case law, they studied such unlawyerly things as project management and made an effort to understand the developing technologies that have become so important to our industry. When their peers among the associate ranks were learning to draft motions to dismiss, these lawyers were managing teams of attorneys, paralegals and technologists, often dozens of personnel, in large projects involving millions of pages of documents and hundreds of millions of legal decisions about relevancy, privilege and confidentiality. It is quite fair to say that, long before becoming a partner, each of these attorneys managed more people than most lawyers will manage in their entire careers. On top of that, they had to manage third party vendors responsible for collecting, processing, hosting and producing the relevant documents, interface with the trial teams and the client on a variety of complex legal issues, understand and then train their staffs on the legal issues in each case, design the project workflow, and manage the entire process so that deadlines were met, the relevant information produced, and client confidences maintained. Just try asking your average fourth-year litigation associate to do that.
What is perhaps even more remarkable is that this is not a one-off phenomenon. In my practice group, three of my partners and six of our associates are all in various places along the same career path, all doing work that most litigators just don’t know how to do. And, most remarkable of all, this career path did not exist even ten years ago, perhaps less.
Once in a while, I will look at the bios of attorneys that hold themselves out as e-discovery lawyers. Very typically, the section of the bio listing areas of practice will look something like this:
Areas of Practice
Antitrust
Commercial Litigation
E-Discovery
Product Liability
The practice areas will differ, but, somewhere on the list, e-discovery will be tucked in. My question is this: if you are spending a good percentage of your time dealing with two, three, or even four different types of litigation, doing the traditional litigation tasks of drafting complaints and answers, taking depositions, working with experts, preparing for trials, etc., etc., when do you have time to learn the unique tasks that these e-discovery lawyers do all day, every day? When I have a big e-discovery case, with tens of thousands, hundreds of thousands, even millions of documents, and the discovery process alone is going to run in the six figures or higher, I have to ask myself, who do I want running that project? Do I want the sixth year associate who has one, two, maybe three major document review projects under her belt, or do I want the attorney whose bio reads like this?
Area of Practice
E-Discovery
Understand me – I am not denigrating that sixth year associate. She is the person that I want taking the deposition of plaintiffs’ expert, or arguing the Rule 12(b)(6) motion. After all, that is what she does every day. So, when it comes to the document review project, I want the same thing: an attorney who does that every day. I want an e-discovery lawyer.
Thursday, May 24, 2012
Subscribe to our blog with
Pingback: Trying to Teach a Rhino to Dance | The e-Discovery Myth
Pingback: Document Solutions, Inc. » Trying to Teach a Rhino to Dance
Pingback: I Want an eDiscovery Lawyer for My eDiscovery Project | The Electronic Discovery Reading Room
Finally, a partner willing to look at how past experience, not pedigree, can be the key to successful projects.
I have been waiting for someone to broach this topic! The article could not have stated the case in a better way! Now, consider what kind of ediscovery lawyer you are. Many times the expertise required to practice in a given area is based on the specific technologies and workflows across the EDRM model. Consider data retention policies, vendor and cloud provider agreements, privacy, etc., on the left side of the EDRM model. Now consider those who must manage review teams (middle of the EDRM cycle. What about claims of spoliation, technical issues with searches, production formats and cost shifting? Might there be sub-areas of practice in ediscovery? Consider what your client thinks and expects when you say that you are an “ediscovery attorney”. What are the best practices? Malpractice? OK, enough. You get the picture. Putting it out there for comment….
Paul,
Thanks for your comments. I was thinking the exact same thing after I wrote this article. I am actually one of those e-discovery lawyers who live on the left side of the EDRM for the most part, so, you are absolutely correct, there are a great number of specialties. And not only for lawyers. There are many other professionals involved. Hence, my next post will be on the e-discovery team.
Dennis
Pingback: E-Discovery Lawyers - Part II | The e-Discovery Myth
Pingback: Friday Notes : Delaware eDiscovery Report
Why is it so surprising that a lawyer can learn to do a second or third thing well over the course of years of practice? It took most of us just three years to get our JDs. Then, several years of developing and trying cases to learn the litigation craft. After that, you can be content to do the same thing over-and-over-and over again, or you can branch out and build. Just as there can be multiple careers in a person, there can be multiple specialties in a lawyer.
I’m amazed by those who are amazed that lawyers can master a second discipline in a lifetime. Lawyers are some of the quickest studies I know. Why shouldn’t we be able to learn a second thing, like information technology? Why should we be content to learn and do only one thing well over the course of a lifetime that’s twice as long as it was just a couple of generations ago?
Doing one thing well is fine, but doing two or three is feasible.
Craig – First, thanks very much for taking the time to read and respond to our blog. Much appreciated. Now, to your comments: As an attorney, I wholly agree with your high opinion of the capabilities of most lawyers. On that, we can agree. Indeed, in my professional life, I have been a computer technician, a process engineer in factory automation, a strategic planner and production planner, a products liability litigator, and, now, a self-professed e-discovery lawyer. And, again, in my own humble opinion, I’ve done pretty well in all of these disciplines. So I would not dispute with you about a lawyer’s ability to adapt and master new disciplines, even multiple disciplines at once. But, the reality is that we don’t. Not most of us, not most of the time. Again, referring to my own experience: I used to make my living fixing mini-computers for Digital Equipment Corporation. Today, if someone needs a computer fixed, they should probably not come to me. Oh, I can get by, but it is not what I do for a living, and there are people far more qualified and far more efficient than me to do that work. The same is true of the law. Most attorneys find it a full-time job to keep up with their discipline, which is why you don’t generally find people that do, say, employment litigation and patent prosecution. Could someone learn and perform well in both areas of the law? Undoubtedly. But do most people try? Not often.
I guess the real point I was trying to make is that your average litigation associate does not have the same skill set as your average e-discovery associate. Not that either could not learn the other’s area of expertise, but that they don’t. Moreover, learning a new discipline is a very different proposition from practicing that discipline. I can go to school or read some books and learn lots of things about information technology. But I will not have the same depth of experience as the person that has done the same thing and then worked in the field full-time for the past decade.
So, with due respect to those modern renaissance men and women who are true practitioners in both the litigation and e-discovery disciplines, for my part, I still want an e-discovery lawyer for my e-discovery project!