The way of the world

By | 23rd August 2012

At this time of year when many people are on holiday and the news appears to be sluggish, articles start appearing which seek to take a longer view or which report results of research which has previously taken place. A recent example is the review in The Lawyer of July 30th into what they call The Great Banking Swindle (their words, not mine!)

Take a pinch of LIBOR fixing and add a dose of interest rate swaps and season with the odd prosecution and regulatory investigation and you have a cauldron from which many of the most well known law firms and members of the Bar may sup. According to speculation by commentators, “every single noteworthy firm” will find a role, given the “depth and breadth of the fall out”.

I have already posted about the first case of this kind which happily is being pursued in the Birmingham Mercantile Court under the auspices of HH Judge Simon Brown QC, see  Friends, Romans, countrymen..

Doubtless there will be others before long.

All these cases, and indeed almost every piece of litigation these days, will involve the search for electronic data, whether in the tried and tested way of collection or via forensics. Every lawyer involved will have to get to grips with not only the ways in which data can be stored and then retrieved but also the many different devices which now need to be considered.

It is, therefore, of interest to read a timely article by Ralph Losey, lawyer and writer and the person behind the e-Discovery Team blog, entitled Going “All Out” for Predictive Coding and Vendor Cost Savings

Ostensibly about the decision of his law firm to enter into a contract with an outside vendor to provide all their e-discovery requirements, the article also ranges more widely to encompass the arguments for and against the maintenance of in house litigation support teams within law firms.

Why do law firms persist in providing e-discovery/disclosure services in house? As Ralph says, they are lawyers providing legal services and there must be a question whether it makes sense to provide non-core services in these troubled times or at all.

I recall law firms investing in financial services and estate agency and even consulting, and I am fairly certain that nothing good ever came of it. Lawyers are trained to be lawyers and that is what they are good at and should be doing. Lawyers should, in my view, concentrate on what they do best which is delivering high quality legal services to their clients, expeditiously and at a price which is both fair to the law firm so that it can make a decent profit and also fair to the clients who are not asked to pay a premium fee for the services they expect their lawyers to provide as a matter of course.

I am always horrified by the number of law firms who still think the best form of marketing is to say that they are good at a particular area of activity. Of course they are; they are lawyers and are expected to be good at the law. It is expected of them and generally accepted that they can do the job for which their training has prepared them. There is no need to say so.

I confidently expect that we will see more and more law firms coming to the conclusion that they will be better served by contracting with a third party vendor after balancing the cost of setting up and maintaining a specialist department for e-disclosure services against the cost of instructing an outside third party vendor whose fees can generally be quite properly passed on to their client.

Add to that the experience of the third party vendor who regularly acts for and against a variety of law firms in all kinds of litigation using many different but up to date pieces of software and developing workflows and processes, and it is easy to see that best practice lies in outsourcing the non-core work rather than continuing to try to deliver it in house.

As Ralph concludes:

“we really have no choice if we want to keep practising law in the Twenty-First Century. All sophisticated litigants will very soon rise up and demand that their lawyers use these new processes. Either that, or they will get new lawyers. That is the way of the world.”

Illustration: Cover page of Congreve’s play c1700 (Wikimedia Commons)