The Origin of the Outside Counsel Tech Audit

D. Casey Flaherty

Law Technology News

01-25-2013

I began my career in Big Law. Like so many of my cohorts, I worked at a large firm on large litigations for large companies. I remain truly grateful for the opportunities I was afforded. I have profound and enduring respect for my former colleagues. I genuinely believe that we delivered value to our clients. Still, as my former and current colleagues will attest, I am an odd duck. And I was never able to reconcile myself to some of my former firm's standard operating procedures.

I believe that we regularly charged clients for unnecessary busywork. Admittedly, some assignments were both essential and inherently labor intensive. But the billed time required was frequently compounded by avoidable inefficiencies, usually technology related. Talented and skilled, my colleagues also worked ridiculously hard; but, too often, it seemed to me, for no good reason.

I joked that my firm had discovered a modus operandi in the sardonic engineering advice, "when brute force fails, you are not using enough." As a joke, it isn't funny. As an observation, it is disturbing. The billing of unnecessary time is theft. As I saw it, we were billing unnecessary time. The conclusion of that syllogism continues to haunt me, especially because, at a certain point, I could no longer claim ignorance as a defense.

One embarrassing example from my own experience is the number of trees that had to die in vain for hearing binders that were seldom used. As a litigator, I was involved in constant motion practice. Though I was drafting memoranda very early in my career, it was rare that I, as a junior associate, was allowed to argue the motion. Instead, I prepared a hearing binder for the partner.

Understandably, the partners worried about being blindsided. So I was instructed to put everything in the binders. Everything included the pleadings, all motion papers (motions, memoranda, declarations, exhibits, etc.), and every case cited therein. This regularly required multiple binders. It always required hours of billed time to organize and index.

The tragedy is that very little of the paper was ever needed. It was an insurance policy — just in case. Just in case the other side made a novel argument. Just in case the court decided to wander off on an unanticipated tangent. Just in case something happened that a client would, with their perfect hindsight, deem possible to prepare for.

The comedy came in instances of actual need. Invariably, or so it seemed, we wouldn't have the one piece of paper around which the argument revolved — the other side decided to bring up something completely outside the scope of the motion (e.g., a declaration in support of an earlier motion) or the court focused on case law neither side had cited. Even when we did have the document at issue, the moment often passed before we could locate it among the stacks.

There were justifiable reasons for bringing all that paper to a hearing. There was, however, infrequently good reason to bring so much in hard copy. A 3-inch binder can hold about 600 printed pages. A few free gigabytes on a laptop, tablet, smartphone, etc. can store well in excess of 100,000 digital pages. The digital pages are easier to transport, organize, and search. Yet, visual evidence of the continued prevalence of paper is available every morning during the mad rush to the courthouse. Carts, hand trucks, dollies, and back problems abound. Sherpa is one of the few jobs for which many junior associates could qualify if they decided to abandon the profession. It is depressing how many tons, literally, of paper should have remained in PDF rather than taken corporeal form.

Which brings me to my own culpability. In preparing binders, I was following orders. The same excuse, however, does not hold for the countless times I printed something to hard copy and then scanned it to PDF — frequently after signing it or adding a label, such as an exhibit stamp. Until someone informed me that this workflow was wildly inefficient, I simply had no idea. I did not know that you could print directly to PDF or that most commercial PDF software will append whatever labels you want, including a digital signature, to one or a thousand PDF pages in a matter of seconds.

My problem was a common one. I treated PDFs as analogous to paper. I could open them, print them, attach them to email, and create them using a scanner. But that is about it. I was blind to all the other ways that PDFs could be manipulated — headers, Bates stamps, OCR, text searches, indexing, cross-references, etc. I was particularly ignorant to ways that PDFs could be processed in bulk, rather than one document at a time. My lack of awareness resulted in many wasted hours, all of which were billed to clients.

When it was pointed out to me — by a client no less — that what I was doing was wrong, I was embarrassed. It also shifted my perspective, and started me down the path of thinking about digital objects in digital terms. I adopted the attitude there's an app for that. That is, whenever I encountered a task that had a high labor to value added ratio, I assumed that I was encountering a problem that someone else had already solved through a program, feature, macro, workaround, etc. Google queries made it easy to locate tools to automatically rename files and stamp exhibits.

Eventually, I got to the point where I was writing my own scripts to speed up repeat tasks. For example, downloading the other side's minor cases was among the biggest pains in creating the hearing binders mentioned above. At the time (since remedied by the legal research service), my options were to (a) enter all the citations at once and download the cases as a single, unitary file or (b) enter each citation separately in order to download the cases as individual files. So I created option (c), create and run a script that entered the citations and downloaded the individual files for me. I subsequently added to that a second script that indexed the cases and renamed the downloaded files (which came with file names like Westlaw_101394582302) to the case title.

Yes, I am an odd duck. Fortunately for me, dumb luck and a benevolent GC brought me in-house where reducing billable hours is a marketable skill rather than career suicide. I am now in a position to do more than just complain (though I continue to do that, too). I fashioned my audit based on my own observations and experiences as outside counsel.

So far I have conducted the nine audits of outside counsel. Those audits confirmed what so many colleagues at other firms had been telling me for years: the inadequacies about which I complained so vociferously were not unique to my firm; technological incompetence is endemic to the profession; and the quantity of resources wasted on busywork is shameful.

D. Casey Flaherty is corporate counsel for Kia Motors America. Flaherty's opinions are his own, not those of Kia Motors. Email: CFlaherty@kiausa.com.