The Litigation Support Peer Group had a session at ILTA09 called The Future of Our Litigation Support Profession: What Lies Ahead? These are the people who actually do the work, so their reports and their views are worth having. They, and the high-level recruiter who sat with them, were optimistic, and that looks like more than mere hype.
What is interesting about discovery and electronic discovery, at least from where I sit, is that it embraces everything from state policy down to the minutiae of data handling, passing on the way some sophisticated technology, board-level strategy in law firms and their clients, and wider concepts like justice, winning and the like. It is also interesting, however, in career terms and in how firms and companies set up, structure and run the business unit which handles disclosure / discovery. Amidst all these high-flown business, technical and philosophical areas are people, in ones and twos or in teams, who are actually doing the work. Lest the reference to “business unit” may seem to imply big teams in grand departments, I see it as embracing also a single person in a small firm whose management is of projects and outsiders rather than of internal teams and who does not have to have responsibility for staff to need the tactical and strategic skills which were discussed in the session.
The Litigation Support Peer Group of ILTA is run by and for people like this. One of the many things that is interesting about the industry is that few have grown old working in it because it is itself too young (they may feel that they have aged fast, but that is a different point; Browning Marean claims to be 36, for example). Those in senior positions in litigation support have, by and large, transferred across either from the pure law side or from IT. Every firm has developed its own way of doing things, and three of those sitting on the panel are examples of those who have forged careers and taken on responsibility in what is a whole new area of practice.
They were Joanne Lane of MetLife, Ruth Hauswirth of Cooley Godward Kronish and Ellen Polhamus of Morgan Lewis. The other panel member was David Cowen of the Cowen Group, which specialises in recruitment into the litigation support industry from coat to coast and in Europe. Over the three years I have known him, David has been at pretty well every conference that I go to and, like me, spends his time there hunting down every shade of opinion which he can find, as well as immersing himself in the framework of rules and technology which underpins the business. That kind of study is what is required for someone whose standpoint is just outside the centre – not a law firm, not a client, not a provider but connected with all of them – much as mine is.
The audience consisted mainly of litigation support professionals in law firms or in companies. I went because I am interested in how we are going to staff this industry as we come out of recession. That seems to me to be a question of importance equal to understanding the business drivers, interpreting the Opinions and judgments of the courts, and knowing about the technology.
The panelists began with an unconscious echo of something I had published earlier that day to the effect that one needs to be able to look back at the history to help form a view as to where we are going. That is not to deny that the future is what concerns most people, merely to accept that the past has some lessons for those prepared willing to look back at it. History repeats itself, David Cowen said. In 2003-2004 Zubulake was a major disruptive factor which gave a push to the industry. In 2006 came the FRCP Amendments and all that followed. The effect was to drive the market, its players and, as a consequence, its technology, onwards and upwards. Whatever the degree of disruption, David said, these things were also an opportunity which had the effect of multiplying the market by factors of two or four or six. One of the direct consequences of this was that new leadership roles were established. Recession, and in particular the consequent downward pressure on costs, would have an impact much greater than we saw in 2003-04 and in 2004-06. The key word here is “opportunity”.
This includes new opportunities for lawyers to find different kinds of roles for themselves, adding technology to their personal skills and to moving the process forward as part of a team – note the use of the words is “part of” as opposed to “servants to”. For those lawyers willing to take the opportunities, the new order was empowering, and this applies to individuals as well as to firms.
A hint of turf wars emerged. In the beginning, the lawyers saw technologists moving into their space. We are now, to some extent, seeing the reverse – lawyers moving sideways (not downwards) into the litigation support roles. Firms now need people with skills sets of broader appeal. We may be stuck with the expression for now, but I predict the erosion of the term “litigation support”, with its connotations of being something secondary, as search, project management and similar specialist skills come to be of greater importance (or, rather, come to be appreciated for their true significance).
This way of putting it implies that there are plenty of jobs out there just now and that, of course, is not the case. It is an area in which it is hard to find facts. David Cowen is, perhaps, in a better position than most to bring data to support mere anecdote. His company keeps track of statistics of layoffs and hirings, and can track the trends. The key trend which he identifies is that layoffs seem to have stalled, and that recruitment, or at least thought of it, is back on the agenda. A single vacancy represents a spike having regard to the way the recent past has been.
He asked the audience how many of them are working harder now than they had been three months ago. Most indicated that they were working harder. The supplementary question was whether they predicted no less work in the next three months and he got the same answer. He was quick to observe that an individual may be working harder than before because his or her erstwhile colleague is no longer working alongside. Nevertheless, the mood of the meeting, as it were, was that there is more work in hand than there has been.
Who will get these new jobs as and when they come on stream? It will not, David Cowen thought, be the technologists who benefit from any upward trend. The growth will be for those who have business skills, particularly business analysis skills, and those who also have the qualifications and experience of working as lawyers in e-discovery. What is needed is the executive leadership – business savvy he called it – which does not necessarily imply an MBA but does cover the experience allowing you to see the bigger picture. Such people will partner with those who are not specialists in this aspect of case and project management, and bring thought leadership, an understanding of the technical issues of today and the strategy for tomorrow.
David foresaw that a higher value would be placed on people with document retention and records management skills, traditionally the unregarded soldiers in the information war. The handy expression “move to the left” [of the EDRM] must become more than a catch phrase as appreciation grows that it is what goes in at the top of the funnel which influences everything thereafter.
One of the speakers emphasised the diversity of the career structure. There was, she said, nothing linear in any of the paths of any of those in the room. That generation had defined its own jobs and roles and job descriptions. This talk of a career structures inevitably lead into the question of certification, that is, the formalising of the career structure by some form of evidence that people coming up in the industry have basic levels of competence. This is a big subject which I will leave on one side for a separate post.
Of the suggestions made for other steps towards professionalism, the ones which were most interesting were mentoring – taking under your wing somebody who has potential but not yet the requisite skills and knowledge – and what was called “wisdom reading”, that is, taking time out of each day to read up and read around the subject using the many online sources which exist. This is not just a matter of keeping up with the latest cases, nor is it as straightforward as reading about business. “Wisdom” implies more than the acquisition of the hard facts.
Someone in the audience took issue with David Cowen’s assertion that the role of the technologist was flat-lining. Just go and look at the new technology in the exhibition hall below, he said, and tell me that you do not need technologists. There is, of course, a continuing need for those who understand the technology and not much else: I overheard a senior in-house programmer saying of his firm’s sophisticated knowledge management system “I couldn’t have done it without the KM people”; the KM people would necessarily say the same of his input. The point David and the others were making was that the new career opportunities – the roles which had not existed before – lay in the potential new executive and leadership roles.
No one in the room was pretending that the recession is behind us and that the new dawn is yet with us. There was gossip around ILTA of companies who had not seen a new instruction in three months and everyone knew of someone out of work. The cynic would say that a man whose business involves recruiting into the industry has an incentive to talk up its prospects and that those on the platform who were the trail-blazers get validation for their new industry by encouraging followers. Cynicism is my stock-in-trade, but I don’t see the platform’s optimism as driven by such self-interest. Cowen has worked hard to get the credibility he has in this market, and he is unlikely to blow it by short-term hyping. If his optimism proves justified, he will be hailed as a prophet; if he is proved wrong, he could not have chosen a more public place to look a fool. He is too clever for that and, besides, I share his optimism. The other speakers would hardly incite others into their hitherto exclusive patch if there were not confident that there will be room for everyone.