Or do they? Does it actually matter?

The official answer is that what we in England used to know as a billion has been downgraded. Is this just another example of Governments massaging statistics? I suppose it matters if you are trying to make something look bigger than it actually is. If I am a billionaire, I want to be worth a million million. But I am not, so do I care that I am these days only worth a thousand million?

Likewise with a trillion which has undergone an even more extensive cut. What used to be a million, million, million million is now only a million, million.

We are obsessed these days with the “how many?” question. How many friends have you got on Facebook? How many followers on Twitter? How many connections on LinkedIn?

This all reminds me of the schoolboy jape which begins with the question, “How many monkeys in a hammerfor?”  If you are smart, you soon learn not to ask, “What’s a hammerfor?” as it invites the response, “to hit you on the head with!” accompanied by a hammer-like fist being brought down upon your head to illustrate the point.

Never fear, though, when it comes to litigation support, because help is at hand.

As a result of LinkedIn and Twitter (almost inevitably these days) I have been made aware by Chris Dale of a set of statistics useful to anyone who has to advise a client about the cost of e-disclosure.

Those of you familiar with this blog will know that I deprecate the fact that we in England and Wales have to use the phrase e-disclosure these days when everyone else in the common law world uses the description e-discovery, as we used to do before 1999.

So, I am always pleased to include a reference to an article which talks about e-discovery because all then seems right with the world and after all no one has yet explained to me satisfactorily or at all what the difference is between the two.

John Tredinnick, litigation partner at Mountain West and DC law firm Holland & Hart and founder of e-discovery search blog Catalyst, explains simply what may be involved when litigation support people talk about gigabytes of data. It is not, of course, an exact science because, for obvious reasons, the answer depends on the type of document and its size. 

The short article is well worth a read  [“Shedding light on an E-Discovery mystery: how many documents in a Gigabyte?” John Tredinnick, Catalyst blog, 7th July, 2011] and, for the record, the median answer is around 2,300, considerably fewer than the often cited “industry standard” of 10,000.

Now, how many tweets have I received today? That is the serious stuff!!

Photo credit:  Male proboscis monkey, Singapore Zoo by Bjørn Christian Tørrissen (creative commons licence)

• Of those responding, a clear majority of about 70% had not outsourced and had no experience of the process. Of the 30% who had some experience, over 80% had experienced mixed or negative aspects of the process – only one respondent said they had had an entirely positive experience.
• Of those who were thinking of outsourcing, the results were again mixed with 46% agreeing they would consider outsourcing of large disclosure exercises but 54% saying they remained to be convinced of the benefits or who had come to the conclusion that the work should not be outsourced in any circumstances.
• In response to the question about which aspects of their work they would consider outsourcing, 77% thought that they would consider outsourcing initial document review, the collection and processing of ESI and document review or aspects of their middle or back office functions.

• More interesting were the specific factors to be weighed up when considering the whole question of outsourcing. Among the many factors, both good and bad, mentioned by respondents were:
  • Standards of work.
  • Ability to pass on costs to the client.
  • Fee reduction for the firm.
  • Quality assurance and control.
  • Concerns about the process for litigation and legal review. At least one respondent thought the whole idea of outsourcing was a bad one.
  • Here to stay and could help smaller firms handle bigger cases.
  • Necessary for smaller firms particularly with large scale e-disclosure.
  • Concerns over future of legal profession if everything outsourced.
  • Confidentiality.
  • Regulatory compliance.
  • Cost.
  • Ability properly to interrogate documents.
  • Concerned how to test document review as it was being done.
  • Why outsource if you can do it in house?
  • Jurisdictional and data protection issues.
• 18% thought that there should be no outsourcing and that all work should remain in the UK for fear of what might happen to the legal profession in the event of outsourcing becoming widespread.

Once again, many thanks to all those who participated. We will use the information to shape our own Smart Sourcing service that is due to be announced shortly. And naturally, we will continue to respect the confidentiality of the responses and the respondents alike – which makes it a tad difficult to announce the winner of the lunch on me but you know who you are (or you will shortly)!!

The origin of All Fool’s Day goes back to the late 16th century and the introduction of the Gregorian calendar in France under the reign of Charles 1X.  I am not entirely convinced that all the hoaxes and pranks associated with that day can be explained by the fact that people were slow to catch on to the fact that the start of the year had been moved from the end of March to January 1st, and continued to celebrate New Year in April, resulting in the rest of the population calling them April Fools.

Nonetheless the practice of making jokes at the expense of others on April 1st has a wide currency even today in countries as varied as India, Scotland and Italy.

It was, therefore, understandable that I should have been fooled into thinking that recent reports that Easter eggs at Eversheds had fallen fowl (sorry!) of the firm’s equality and diversity policy were part of some seasonal spoof.

If you missed the story, Eversheds’ plans to give staff Easter Eggs had to be put on hold after concerns that the gesture might offend staff who did not celebrate the Christian festival.

Easter this year fell immediately after April 1st and I had assumed that this was a clever example of an April Fool which, if nothing else, provided the law firm with publicity.

Apparently, however, this was not the case and a serious discussion had ensued in the light of a possible objection from those who do not observe what was described as the Christian festival.

This was where I began to get annoyed as I could not see what Easter Eggs had to do with the Christian festival of the Crucifixion and the Resurrection. As far as I could recall, eggs were conspicuous by their absence from Pilate’s court and from the road to Golgotha and surely never have been anything to do with the Christian festival.

Easter bunnies, too, are one of the images we are accustomed to seeing at this time of year, but I do not recall reading that anyone had sought to ban them for fear of offending those who follow a different religion. It would be like seeing a call to ban robins sitting on the handle of a fork on Christmas cards for fear that someone somewhere might take exception to them around December 25th.

So I am not sure what to make of the Eversheds story, but I am grateful to the firm’s HR department for starting it all because it led me to read belatedly the interesting report the firm published in March entitled “The Clients’ Revolution”.

Your can download a free copy from Eversheds’ website by filling in their request form.  The report is a 2010 update of a report which first appeared in 2008 and involved 130 General Counsel and 80 partners of law firms who overwhelmingly (78%) endorsed the thought that the recession would have a lasting impact on the legal profession. The research also identified four major factors which are driving change which, in order of importance, are:

• Globalisation-the move to the East
• Increasing professionalism and status of General Counsel
• Technology
• The Legal Services Act in the UK.

The report is beautifully put together and is worth reading in its entirety but its main conclusion, suggested by the title, is that the recession has provided real impetus to a move which has been apparent for some time now, namely that clients (and by extension General Counsel and other in-house lawyers) have moved to centre stage as the clients and purchasers of legal services.

One of the results of this shift will be the demise of the all powerful hourly billing model and the justifiable inefficiency in the manner of delivering legal services which some firms still continue to operate.

Clients are now more demanding and more knowledgeable about what they want and in litigation judges are more likely to intervene to ensure they get it.

It has been fascinating discussing with a variety of lawyers recently how best to get to grips with huge amounts of data when there is little time or money to employ the traditional methods of printing out reams of paper and setting teams of paralegals and other juniors to trawl through the resulting mountain just to put it in chronological order before starting some form of review of the material.

Fortunately, many law firms are serious about coming to terms with the new technology (and after the recent cases of Earles and particularly Goodale where the new ESI questionnaire is annexed to the judgment) it is just as well that they are.

The IT now available is so much more efficient that any manual process could ever be and, provided the entry price is low, could and should be used in even the smaller cases.

That sounds less like an April Fool to me than worrying about whether you should give Easter eggs to staff. What is more, it sounds like a win-win for clients and law firms to boot!

This is the 6^th year that the firm has polled corporate law departments on the state of global litigation and the results confirm not only that there is an upswing in instructions but also that increasing litigation activity is anticipated in the year to come.

I have commented previously on where I have seen the litigation coming from and it is gratifying to see the survey confirm the trends: 

• Bankruptcy
• Contracts and employment litigation
• IP
• Insurance
• Regulatory actions

The detail is:

Regulatory investigations and whistleblower allegations are expected to eat up litigation resources in the year ahead. Looking to 2010, 16% of all respondents (and 23% of large-caps) say they expect the number of internal investigations involving their company to increase. Industry-wise, approximately 20% each of financial services, insurance and technology companies expect internal investigations to rise in the coming year. This tracks expected increases in whistleblower cases: 24% of all respondents and 31% of large-cap companies expect the number of claims brought by whistleblowers in their industries to go up.

What lies ahead? The survey says:

• In house Counsel have geared up for litigation in a number of ways with 16% planning to spend more on e-discovery.
• Clients plan to cut costs by either doing e-discovery in house or by employing law firms with specialised e-discovery practices and/ or outsourcing certain e-discovery functions to preferred provider companies
• Stricter document retention and destruction policies will be used to cut discovery costs.
• Networking sites such as Facebook and Twitter will be used more.
• Costs are very much an issue. More than one third of the companies say that the economic downturn has resulted in an increase in litigation caseloads but also in the use of alternative fee arrangements. “Tighter cost control, more than anything else, is the most important way in which the economic crisis has affected litigation management”, say respondents. 

All of which is good news for those in the e-discovery market and for lawyers with specialist e-discovery practices. It confirms a trend we have identified previously towards specialisation either in house at the law firm or by use of a specialist e-discovery firm.

The message is clear. There is work out there but in order to get it law firms must get to grips with e-discovery and not just pay lip service to the idea.

Download the report: http://www.fulbright.com/litigationtrends07