by Sam Bock
on January 17, 2019
Education & Certification
Legal & Industry Education
We recently covered a Relativity Fest panel on the importance of cooperation in the modern practice of law. Put simply, good collaboration is critical to effective case strategy—and that means collaborating with both sides of the aisle.
But what does that mean, and how do you start?
Check out these insights from the panelists on how to foster more effective cooperation within your team and beyond it.
Though you can’t control the receptivity of your opponent when it comes to cooperation, there’s one important factor you can always manage for your team: collaboration begins from within.
“My view on cooperation is that it starts within your team—if you’re lit support and need to work with attorneys, you need to establish cooperation so you can start in at the ground level and understand the issues,” Kelly Twigger, principal at ESI Attorneys LLC, urged. “As a team, you have to all work together amongst yourselves and the client before you can create collaboration with the other side as well.”
Panelists agreed that a perceived gap between those on and off the bar creates an unfortunate—but navigable—barrier to collaboration among legal teams.
“Attorneys: if you’re here, you know this—but please spread the word to other attorneys. Lit support should not be coming in in the second quarter. They sometimes, in the hierarchical setup of a law firm, have a fear of speaking up,” Suzanne Clark, discovery counsel at e-Discovery Co-Counsel PLLC, advised. “So lawyers, have trust in your people and bring them in at the beginning. We are dispute resolution professionals—all of us. The whole ‘attorney/non-attorney’ thing has got to go.”
A little initiative and outspokenness from all members of the team can go a long way in minimizing this problem. Kelly had some advice on how to close the divide.
“I think in large part this divide comes from lawyers not knowing what to ask you or how to talk to you, and from lit support not knowing how to bridge the gap and talk to lawyers. So we need to address that. Don’t be hesitant to speak up,” she suggested. “Say, ‘I know I’m coming in in the second quarter, but here’s what I see and why I think it’s going to be hard on us down the road,’” for example.
“Put it in their terms, let them know how this stuff is affecting their most important goals,” Kelly continued. “Lawyers want to grow and work their cases better.”
First things first: cooperation with opposing counsel doesn’t mean things have to be all sunshine and rainbows across the aisles.
Chad Roberts, discovery counsel at e-Discovery Co-Counsel PLLC, had phenomenal perspective on how to accomplish collaboration even in a highly competitive case:
The secret sauce to [collaboration] in a contentious environment includes two elements: one’s easy, and one’s hard.
The easy one is transparency of process; affirmative transparency means taking initiative to start collaborating with the other guy. If we’re weak on the left side of the EDRM, we’re fearful, and when we’re fearful, we snarl and bark and yap and don’t act collaboratively. So this transparency is totally disarming [for the other side], and it works to your advantage. Don’t wait for them to ask—just unilaterally begin with “here’s what we’re doing.”
The second, difficult one is that you have to learn to talk to the other party. When it works, and we have uniform success with this, I wind up in the defendant’s workspace doing analytics. No, I didn’t hack in there; I got invited. And it was a promise: “I’ll reduce your volumes to 20 percent for your review. That way, my anxiety [about effective, proportional discovery practices] is addressed and so is your client’s.” But you have to be a mediator to do this. This is a skillset that you need to learn. The way is to talk while leaving baggage behind. No throw-downs. Just talking, between you and the partner on the other side. When the other side is transparent with us on process, it’s disarming and trust-building, and when you learn to talk like a mediator, these great collaborative outcomes occur.
Above all, panelists emphasized the importance of starting early in your efforts to be collaborative.
“Cooperation comes from your team and how you operate and review your cases. That’s at the heart of what we do,” emphasized Grainne Bryan, CEO of legal technology solutions at McCann FitzGerald. “When you introduce how you’re going to run a case, you need to start with transparency, understanding, and collaboration—that’s how you bring efficiencies and introduce technology to the practice of law to discover new and better ways of doing things.”
One of the most resounding, repeated takeaways from the panel was simple: collaborate early and collaborate often.
“I’m a very big proponent of sitting down, planning, and thinking about what all needs to happen for a case, putting it in the ESI protocol so those issues are handled and you don’t have to fight about them later,” Kelly said. “Facilitate cooperation by planning early on: ‘let’s do the priv log this way, deal with social media data that way,’ and so on. Plan for issues up front to reduce the need for friction later.”
To keep that friction out of the picture, “Just comply with those rules and communicate. Be humans—stop being lawyers and just be humans,” she suggested.
Grainne agreed with setting up your case for success by collaborating from the first opportunity. “If you don’t start with cooperation, then you run into issues later where you avoid that road even further and that causes more problems,” she noted.
One way to make cooperation the default for your cases? “Try to find a way as an advocate or lawyer to make the requirement to cooperate substantive, not aspirational,” Chad said. He went on: “There was an attempt to make cooperation substantive in the [2015 Federal Rules of Civil Procedure] FRCP updates, but it failed.” But you can still make the rules work in your favor.
“If you think about it, Rule 26 does make cooperation substantive because it is so focused on the cost of things: we can push for transparency on what causes those costs, since they are of so central concern,” he pointed out. “The more we open the door from the start, the more we can explore that to our advantage.”
That said, missed opportunities happen for plenty of reasons. You aren’t always going to leave the house in matching socks, and you aren’t always going to leave the proverbial gate of your case with cooperation built in to your approach. Things happen—on both sides—to turn it into a fight.
But that doesn’t mean all hope is lost. Keep trying.
“In Ireland, it’s mixed when it comes to cooperation. It depends on the law firm, the clients—sometimes they want to be aggressive and play hardball,” Grainne said. “So then it’s about figuring out what you’re up against. Are the clients just concerned with winning a fight? If so, you have to point out what a lack of cooperation looks like, and in front of a judge you have to show that you’ve tried every which way to cooperate to illustrate proportionality and explain what happened.”
You can also take the high road of transparency whenever the ball lands in your court.
“I have a colleague who, if he get a letter that’s overly broad, will pick up the phone and walk through exactly what we’re going to preserve to challenge that based on what he already knows about the data,” Suzanne explained. “Maybe they sent that as a form letter and didn’t know how inclusive it was. It’s transparent and cooperative for him to reach back out and say ‘Let’s keep this narrow, be reasonable, and talk this out.’” That’s a great way to set the stage for further cooperation down the line, and it can be put into place at many junctures throughout the lifecycle of a case.
Going back to building that internal culture of cooperation, Chad noted that every member of a legal team can contribute to taking a more collaborative approach—not just lawyers.
“Litigation support pros can remind attorneys that do-overs cost money,” he reminded us.
What does cooperation look like on your team? Has it become more important since the 2015 rule changes? Visit the Relativity Community site to join the conversation and learn from your peers.
Sam Bock is a member of the marketing team at Relativity, and serves as editor of The Relativity Blog
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