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Much of the work we do in Europe involves intellectual property (IP) and the technology, media and telecommunication (TMT) industries, either staffing litigation projects or special assignments here through Project Counsel, or via our coverage of IP and TMT through our sister company EAM Capital Partners. Our work has also included the financial services industry and medical device/pharmaceutical industries.
It has involved us in both the ongoing global patent and copyright litigation wars as well as proactive reviews of internal processes related to e-discovery with an eye toward reducing risks and costs associated with future litigation or government investigations. This has afforded us the opportunity to attend several World Intellectual Property Organization (WIPO) conferences on managing IP litigation, and the role played by e-discovery. WIPO is a well known name in the fields of intellectual property rights (IPRs) and dispute resolution and has been establishing itself in areas like cyber law disputes, cyber forensics disputes, and e-discovery related disputes.
We are fortunate, then, that most of our client base come from the TMT, financial services and pharmaceutical industries where a holistic approach to litigation, compliance and governance is pretty much in place simply due to the high level of regulatory issues these industries face, especially their highly litigious marketplaces. In-house counsel and compliance professionals have the knowledge of the interplay of those related disciplines. As the roles of the general counsel and compliance officer have broadened and impacted the strategic direction of the business, the importance of bringing litigation support/compliance support technologies (along with high-quality but lower cost attorneys) in-house to improve ROI has become manifest. We have seen this especially in the quickening adoption in-house of predictive coding/technology assisted review technologies. E-discovery/information management technology vendors we work with have seen this uptick as well.
Although the economic proposition will be different for every company, there is little doubt that building an in-house litigation support structure or using inside counsel to handle litigation is generally cheaper than hiring outside vendors or counsel, especially for “ordinary” litigation and compliance matters. But perhaps more importantly than the economic savings, is the benefit that an in-house facility has in providing attorneys an understanding the company, producing outstanding results and preventing future litigation and compliance issues. Lawyers practicing within a legal department have a unique view of the company that no outside attorney, no matter how talented, can obtain. The ability to understand the long term goals of the company and make strategic decisions in litigation based on this understanding provides an immeasurable benefit to the company.
If you have had an opportunity to attend any of the excellent IQPC Corporate Counsel events where all of these issue have been discussed, you know what I mean. At these events we have the opportunity to meet numerous corporate counsel from all industries. One theme that is on everybody’s mind is outside legal spend, and how to reduce it. There are many aspects but one point in particular seems to be repeated. As one legal director put it: “Yes, we often use outside counsel. We need to. We cannot cover everything, and many matters are complex. But we decided to bring much of our work in-house for what we saw as routine matters across numerous jurisdictions. And we brought in-house some basic e-discovery/compliance software, with appropriate human support. It riled me that we had law firms invariably spending a great deal of money teaching their attorneys about the company’s policies, procedures and systems. That education process may have to berepeated numerous times each year if our company faces suits in many different jurisdictions. By contrast, our in house litigators have ready access to all the information they need to defend the company, and do not require retraining for each new case. We gained enormous efficiency by having institutional knowledge that allows us to spend less time “getting up to speed” and more time working on substantive issues in the lawsuit or matter. And … this was a logical development … every lawsuit provided an opportunity for us to improve our systems and, perhaps, prevent the next lawsuit in that arena. And we have slowly upgraded our litigation support technologies accordingly.”
This is a major shift we have seen world-wide. As most of our readers know we maintain a series of legal job listservs for our members that cover North America, South America, Europe, the Persian Gulf, the Middle East and the Asia Pacific region. We post e-discovery document review projects, paralegal positions, forensics positions, litigation support positions, project management positions, compliance positions, general counsel/assistant general counsel positions – pretty much everything across the legal employment field. We also post special legal projects and legal surveys.
There has always been a huge demand for legal personnel from the “usual suspects” in outsourcing that support corporations and law firms: the litigation support vendors and the recruitment/staffing agencies.
But over the last year and a half there has been a notable shift: we have seen a fast growing percentage of law firms and corporations placing ads on our listservs for all types of legal personnel, building their own in-house litigation support teams. Surely the technology advances in the market have made it easier for law firms and corporations to bring litigation support in-house. And not just the utilization of “data swat-teams” comprised of staff attorneys who possess the tech skills + the analysis ability to conduct complex e-discovery searches, but in-house teams to analyze all manner of legal information and generate reports and make strategic decisions.
For law firms, there has been an even greater move to go “in-house” rather than use outside legal vendors, providing their corporate clients lower costs … and themselves bigger profits. Probably no law firm has adopted the in-house model better than WilmerHale. Last year at LegalTech Steve Berrent, managing director of WilmerHale Discovery Solutions, talked about the WilmerHale model: bringing e-discovery and other matters in-house, predictive coding and other technologies, collaboration amongst parties, and more:
For law firms it boils down to an analysis of issues like core competency, complexity, cost, risk, and ethics. And there are two schools of thought: Ralph Losey of the law firm Jackson Lewis has written that law firms should outsource litigation support, and Bryon Bratcher and Tom Baldwin of the law firm Reed Smith have written that keeping select litigation support services in-house can provide substantial benefits and cost savings to corporate clients.
Here are links to their posts on their respective positions:
6 Reasons to Insource Litigation Support (Bryon Bratcher and Tom Baldwin)
Five Reasons to Outsource Litigation Support (Ralph Losey)
In conclusion:
For corporations, although the media coverage has focused on outsourcing as a cost-saver in routine elements of litigation, more and more corporations are bringing much of their litigation work back in house. As we stated, the economic proposition will be different for every company, as will competency and complexity. But the advantage for legal departments is less economic reliance on outside providers, and perhaps a higher level of care with the work remaining closer to in-house corporate counsel. What we have seen coming in-house are the routine aspects of document production, discovery, investigation and research. And in some cases we have seen … and worked with … the outside law firm taking a sort of “lead counsel” advisory role, directing the in-house employees’ discovery and trial preparation work, and helping track the case or matter throughout its lifespan.
One technology that in-house law departments have sought and adopted in-house has been visual analytics — the combination of analytical reasoning and interactive visual interfaces — to better communicate information. These visual analytics can take many forms, including graphs, interactive maps and cluster diagrams, which help display information in intuitive, insightful ways. In the e-discovery world, this visualization allows legal teams to examine and make decisions on large volumes of data simultaneously by incorporating visual cognition and pattern recognition.
In one recent example, we worked on a large search project with an in-house legal staff that involved hundreds of thousands of emails. By employing advanced search techniques that the company had brought in-house (we used a combination of technologies from two different vendors for document clustering and for predictive coding) we mapped out the email sets and gained a comprehensive view into communication patterns. We were able to infer where responsive data was located, which employees were likely to be key data custodians and determined the general scope of the discovery project. All done in a very cost effective manner, and enabling the legal team to view and understand the case data in a timely fashion.
Visual analytics is something we have been working with for a few years now, ever since Jason R. Baron and Victoria Lemieux gave us a “crash course” at a 2010 text analytics conference. When properly applied prior to collection it can help the legal team answer critical questions about legal liability, narrow the scope of the case and better understand potential discovery costs — all of which can contribute significantly to developing an effective, less expensive case strategy. If you are attending LegalTech2013 in New York next week you will find a multitude of vendors hawking their visual analytics expertise. Make a point to visit the booths of Exterro, Equivio, StoredIQ andZyLAB who are at the top of their game in this field, and of course do much more in litigation support and analytics. NOTE: we have no financial relationships with any of these companies. But we have worked with their technologies on in-house law department projects. We are simply suggesting where to start if you have not considered analytics.
Clearly in-house counsel are seeing that unbundling and isolating elements of legal services and bringing some in-house can be valuable and contain costs … so long as quality representation is not lost.
NOTE TO OUR TMT READERS: next month is the Mobile World Congress in Barcelona. To read our coverage of MWC2012 please click here. We will be back again this year with a video crew. If you’d like to catch-up at the show … perhaps just a chat, or even a video clip , please send us an email: media@projectcounsel.com
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