Inside Out: 5 Questions In-house Counsel Should Ask Outside Counsel



by Constantine Pappas on July 23, 2015

Legal & Industry Education , Review & Production

If you’ve seen Disney Pixar's Inside Out, you were probably left thinking about how our internal thought processes interact with external drivers to impact our behaviors and relationships. In e-discovery, the question is the same: how does an in-house legal team work with an external team to create positive outcomes?

The relationship between in-house counsel and the outside attorneys they partner with is perhaps our industry’s most essential, as these are the core members of teams that strategize on e-discovery matters. To get that relationship right, it’s critical to open the lines of communication early on, and keep them open at all times. There are several fundamental inquiries that can be universally beneficial for in-house legal teams to ask outside counsel to optimize their communication, and here are five of them.

1. Which corporate SMEs do you need to consult, and how often will you need to contact them?

Nothing grinds an e-discovery project to a halt faster than the lack of a dedicated expert to answer questions about the business side of your case. That said, you don’t want to be peppered with questions every five minutes while you’re trying to do other work, either.

Dedicate at least one subject matter expert from your company to every project, so a knowledgeable resource is available to explain what internal project code names, technical processes, and acronyms mean. Establishing a cadence of communication ensures the attorneys you partner with get the information they need to keep things running while ensuring your internal resources aren’t overwhelmed.

For example, many project teams streamline this communication by funneling substantive corporate questions through a single reviewer, who then submits them at the end of the day to your designated business SME. This helps eliminate redundancy, solidify ownership, and ensure predictable and timely responses.

2. You understand our org chart, but do your reviewers?

A good law firm learns its clients’ businesses. Still, it’s easy for an outside firm to focus more on the facts of a case than the relationships linking the people involved. Making sure outside counsel understands these relationships is crucial to their locking down the story of your case and should not be underestimated or taken for granted.

While it’s true that many review teams are provided with org charts when attending case orientation, often very little time is spent on crucial relationships, particularly with respect to how a given custodian fits into the big picture. Certain legal elements may have greater resonance depending on a person’s role. For example, an engineer will obviously have greater impact on design decisions, and a marketing executive might be closer to go-to-market strategy.

This is also important when people change roles over time or if your company undergoes reorganizations. Some fact patterns require a very specific understanding of these evolutions. What’s more, privilege calls often hinge on these shifts. To prevent slowing down review progress, work with your outside counsel to ensure their review team has this insight well in advance.

Knowing what to look for regarding context ensures that reviewers have great, focused insight. This insight is especially helpful during the early stages of review.

3. What technology are you using, how much experience do you have using it, and why was it selected for this specific project?

Corporations and law firms both employ skilled practitioners with varying degrees of technological understanding and experience. Deferring to those with the most experience is common sense, but sometimes other facts come into play and muddy the waters. Regardless of who is choosing a technology (or vendor), it’s important everybody feels comfortable with the selection and knows what to expect from it. This applies to both the core platform and specific workflows, such as technology-assisted review.

Furthermore, it’s not only important to know what technology has been selected; it’s also important to know why it’s the best fit for this specific case. Internal and external attorneys sometimes demand a certain technology that turns out to be a poor fit for the project. Avoid these circumstances by adding “why” to your questions of “what,” “who,” and “how,” and collaborate with your outside counsel and partners to come to the best conclusion.

Before kicking off a project, it’s worth considering whether a flexible and powerful technology like predictive coding is right for the case. It’s true that more case teams should take advantage of it, but just because someone asks for it doesn’t always mean it’s the right fit. Are the documents amenable to an analytics workflow? Is the right team in place? Will the desired approach work with the mandated timeline? These are all good questions to ask before proceeding.

4. How often can we expect updates on the case, and how detailed will they be?

Setting the right cadence for regular updates is just as important as setting a cadence for questions from outside counsel to internal experts and should be established before any work has begun. Maybe you want daily updates, which might take the form of a simple phone call indicating things are on schedule. Or perhaps more detailed metrics like these—given at less frequent checkpoints—are more aligned to your business processes:

  • Percent of responsive documents
  • Percent of privileged documents
  • Total percent reviewed
  • Number of documents requiring redactions
  • Documents posing technical difficulties
  • Documents requiring translation
  • Revised completion dates (if adjustments or accommodations are necessary)

It’s also good to know up front what reports the project managers have at their disposal. Will they meet your needs or will customizations be necessary? Additionally, some teams might want to couple these updates with the SME questions listed up in question #1. Get a feel for your outside counsel’s typical approach to these updates, and be clear about any alterations you’d like to make to suit your needs.

5. How is this project being staffed, and what is our role in the selection process?

Not all review teams are created alike. Some firms have their own dedicated review team, and others use staffing agencies they know and trust. There is no right answer here, but having both in-house and outside professionals work together in selecting reviewers can eliminate surprise and ensure satisfaction.

Some reviewers are more experienced in specific types of cases, such as anti-trust or products liability. Some firms have a dedicated privilege review team that works on nothing but knocking out privilege logs. Some teams are selected based on their proficiency with the tool(s) being used. Understand these considerations and what’s going into the decision.

This question applies in the other direction as well, in cases where your in-house team is selecting the staffing agency. It doesn’t always need to be a 50/50 endeavor, but choosing the right people is essential—and inviting input from both internal and external teams of experts can often be a big help.

Are these the questions your team asks of outside counsel? Post your thoughts in the comments.

Constantine Pappas is a licensed attorney with more than 15 years of legal experience. He is a member of kCura’s advice team, helping Relativity users build workflows for analytics and computer-assisted review.

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