I have interviewed Wendy King of FTI Consulting several times. That has always been face to face, usually at conferences, but lockdown brings the need to do the interview remotely. The interview, then, was a model for our subject, which is how FTI Consulting, its clients and its teams, have adapted to 2020’s challenges.
We spoke just as FTI Consulting published its Technology segment’s second annual study of corporate legal departments, in partnership with Relativity. The report is called Rising to Today’s Challenges and FTI’s summary of it begins:
Notably, the majority of respondents indicated moderate to significant difficulties in navigating today’s top challenges, including widely dispersed workforces, emerging data types, technology adoption and tackling diversity, equity and inclusion. The report shares the strategies counsel are implementing to overcome these and other issues, establish resiliency for the future and adjust to the changing demands of their role.
In this context, I first asked Wendy King how lockdown has affected how FTI works with its clients and internally.
I wondered, for example, if lockdown is making us work better and encouraging the development of more effective processes. Wendy King said that some businesses are finding out how strong their business continuity plans are and are having to focus more on where their data is. Many have learnt how to communicate more virtually. For others, the experience has been less positive.
Wendy King used to spend 80% of her time travelling, and she and her team have had to adjust how they keep in touch both between themselves and with clients, on services generally and on particular projects. The dinners, meetings and presentations of pre-Covid times were important ways of building on relationships.
There have been virtual team meetings, and a regular newsletter to keep people informed and engaged, and other things to keep people in touch with each other as a substitute for the small-talk which binds people together at work.
Empathy and flexibility are the main qualities needed by employers. They must recognise, for example, that staff face different challenges in working from home, whether that be about childcare or about equipment – it is one thing to provide good monitors, for example, but there is no control over the quality of the internet connection, which varies from area to area.
Clients are going through the same challenges and there is a balance to be struck which preserves a professional relationship while recognising the new informality which virtual contact brings.
I asked Wendy King what trends are uncovered by the GC report from FTI and Relativity. Last year, the report concluded that the role of the GC was expanding. Privacy was now in the top 3 of GCs’ concerns. Lockdown affected that in two ways.
One was less significant than expected – GCs said at first that they never thought compliance work could happen remotely, but they have found that they are still able to work very effectively even as their roles expanded.
The other is that it is harder to find and retrieve potentially discoverable data without having one’s eyes on staff as one used to have, and it is harder to secure it. The main practical effect for eDiscovery is how to do collections and the effect of that on the timelines. Restrictions vary from state to state, and FTI has to work out how to manage all that. It may take another six months or so before that shows itself as a problem, both for discovery and in relation to (for example) IP loss as it becomes harder to control how data is transmitted.
We were all dropped into this suddenly, and everyone had to manage as best they could, with no opportunity to prepare for it. When lockdown began, FTI was working on a second request against the usual tight timetable. Amid all the obvious practical problems, such as uncertainty as to which reviewers would be able to get into work, the final one was whether a courier could be found to deliver the hard drive with the final production. One was found, and the delivery was made on time.
Coming back to the GC report, I asked Wendy King if lawyers are getting better at using technology in their practices.
In 2019 they felt pretty confident about this, but they had less confidence by the time of the new survey in August 2020. They were more proficient in the use of collaborative technologies and the use of analytics which helped make up time for Covid-affected functions like collections. The same applied equally to in-house teams and to external lawyers.
The ability to work remotely had come into its own. FTI was an early adopter of RelativityOne which meant that data could be accessed from anywhere with an internet connection. This allowed them to be much more nimble and to work as effectively as they could before lockdown.
It is perhaps easier to persuade reluctant people down a particular path when there is no choice, but FTI and its clients were already there – people were comfortable using RelativityOne because they could see how much Relativity had invested in security.