You will doubtless recall from your Latin lessons at school that the Romans drew a useful distinction between questions which expect the answer “Yes” and those to which the presumed reply is “No”, the former generally beginning with “Nonne” and the latter with “Num”. The questions “Are you going to give her a call?” and “Surely you are not going to hack her phone?” are subtly different in tone.
The question which comprises my heading clearly expects the answer “Yes”, whether put to a company or to a law firm – general counsel in companies are thought to be seriously concerned about eDiscovery costs, and law firm partners must want to know that they are offering their clients a service which is competitive as well as effective. This turns out to be a different kind of question – the one nobody asks.
The subject comes up now largely thanks to articles by Katey Wood of Enterprise Strategy Group whose Information Asymmetry blog index is here. Three articles – one called eDiscovery and the law firm: great expectations, poor accountability, and two which include the words Is eDiscovery Ignorance Bliss? show for themselves what Katey’s theme is. Where I am a mere commentator, Katey is an analyst, and her assertions about the lack of curiosity shown by both general counsel and external lawyers are underpinned by survey results.
Her blog posts are based on a more formal survey whose results are available only to ESG subscribers; it is called eDiscovery Market Trends: a View from the Legal Department. Dean Gonsowski of Clearwell (now part of Symantec) provides us with a useful summary of the survey in an article whose title, ESG’s Legal Trends Survey Reveals Alarming Inattention to eDiscovery Spending says it all. How can you measure the value which your external lawyers are bringing you if you have no idea what the cost is?
This theme recurs in a report by UK law firm Nabarro called General Counsel: Vague about Value? Sub-headings like “GC’s believe it is important to improve the efficiency of the legal function but most of them are doing nothing about it” and “… 77% do not quantify or measure the contribution of value added services” perhaps begin to explain why law firms feel under no particular pressure to alter the way they bid for work and why, in respect of eDisclosure at least, so few of them are exploring more efficient ways of delivering services. Why, for example, would you abandon the lucrative business of document review when your clients show no interest in how you can combine technology with externally-sourced managed services to reduce significantly the cost of large and medium-sized litigation?
There are several reasons, of course, why a law firm should at least investigate what the alternatives are. If 60% of companies (the figure from the ESG survey) are not interested in their eDiscovery spend, then 40% are interested; when 77% of the companies in the Nabarro survey are not interested in measuring the contribution of value added services, then nearly a quarter are interested. That proportion must increase, and it seems prudent for law firms to start developing the processes which, increasingly, they will be expected to talk about at client pitches. These pitches are not just for new business from new clients: I heard someone recently from a large Australian company say that the company had changed its eDiscovery provider because their usual one had gone on accepting instructions for outdated (and expensive) ways of working when it should have come forward and proposed new and more efficient methods. If law firms similarly wait to be asked, they may find that a more proactive rival has taken the work away from them.
It is not merely inertia which prevents law firms from identifying for themselves, and proposing to their clients, better ways of getting the job done. Katey Wood’s most recent article, Is eDiscovery Ignorance Bliss? Round 2, spreads the blame between the clients themselves, the lawyers and the technology providers. In the latter context, she is kind enough to quote from an article of mine; I referred to provider marketing implying that technology makes lawyers superfluous; that is misconceived on two levels – it is unlikely to encourage lawyer take-up, and is wrong anyway. My article King Ludd and the Lawyers – eDiscovery and the Luddite Fallacy covers this point.
Katey Wood’s central point appears in this paragraph from her most recent article:
For those ready to change (or even just bargain intelligently), tracking current costs is a crucial first step. After all, corporate litigants won’t ever know they’re getting their money’s worth for e-discovery if they don’t even know what they’re spending.
That need to “just bargain intelligently” implies the acquisition of at least enough knowledge to know what the alternatives are, what they cost, what they can save and what competitive advantage they give you viz-à-viz both your clients and your clients’ opponents. Just as you can invert percentages (as I have done above) to turn a negative into a positive or vice versa, so you can see the sense of a proposition by looking at its obverse. The statement “I have no idea whether there are better ways of undertaking this most expensive component of litigation” makes little sense, whether uttered by general counsel with budgetary responsibility or by a law firm bidding for the work yet, if the surveys are correct, this would be the truthful answer of many of them. It applies also as between the lawyer (assuming that he has won the job) and his or her opponent: “I do not know much about my clients’ data sources and I am not up to date with the technology and resources available to manage them” would be a way of admitting both to low expectations in the fight for a good settlement and, probably, to negligence.
More positively, reversing these statements to say “I know what I’m talking about”, when backed by some evidence that this is true, seems more likely to win the client and to persuade litigation opponents that early settlement would be a good idea.