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When I worked as a consultant, I was frequently brought in to fix a mess that someone else had created. Now that I’m back on the law firm side, I strive to outsource to avoid disasters in the first place. The pace of litigation often forces very quick decisions whether to complete a project internally or outsource. Generally, there are three factors that influence that determination: Economics: Does it make financial sense for the firm and/or the client to outsource? Infrastructure: Do you have sufficient personnel and equipment to do the job? Expertise: Can you do the job right? ECONOMICS It is almost always preferable, if possible, to use staff whose time can be billed at a profit than to merely pass along a consultant or vendor fees as an expense. However, the equation is not necessarily so simple. For example, where scanning and coding are involved, it almost always makes more economic sense to pay a vendor 16 cents per page for scanning and $1 a document for coding than to pay an hourly rate for litigation support staff. There is a widespread perception clients are somehow less likely to scrutinize 30 hours of time at $150 per hour than a single line-item expense of $4,500. But what client is not amenable to the idea of saving money? Using a consultant or vendor makes the most sense when the consultant is offering something, such as expertise or infrastructure, that can’t be provided internally. INFRASTRUCTURE Most law firms do not maintain the kind of equipment and personnel to prepare, scan, unitize (break into discrete documents), and code 200 boxes of litigation documents. An experienced litigation support person can look at a box of paper and determine very quickly how easy or difficult it might be to scan it in-house. How much paper is involved? Is the paper stapled? How easy is it to unitize? Are the documents large or are there many small documents? All of these factors contribute whether to handle a job in-house or to outsource. It’s a good idea to develop a rule of thumb — for example, anything bigger than a box goes to the vendor, anything smaller gets scanned here. Likewise, most law firms don’t own sophisticated presentation equipment for trials, and may not have a person on staff who can be running an ELMO, document camera, digital whiteboard, or trial presentation software eight hours a day. Firms where attorneys are continually trying cases would, of course, do well to purchase presentation equipment and make certain their staff knows how to use it. Firms that do not try cases so frequently would generally do better to outsource. EXPERTISE Many aspects of litigation have no margin for error. One of these areas is the forensic handling of electronic evidence, where precision and expertise are absolutely essential. When making a forensically accurate copy of a hard drive, for example, one small mistake in handling and you may be destroying or altering evidence without knowing it. Even a process as seemingly simple as producing e-mails may merit outsourcing in order to maximize expertise. I recently had occasion to discuss an e-mail production with an attorney from another firm who could not understand why a project might take weeks. “I mean, it’s not rocket science!” the attorney protested. True, but if you later find yourself in the position of having wasted hours of attorney time on e-mail that can’t be produced because it has been electronically altered, you will wish you had treated the process as carefully as you treat case cites in a summary judgment brief. At trial, too, there is little room for error. With 12 jurors, a judge, a witness, your client, the opposing counsel and their client watching, do you want to take a chance on your equipment failing? What if you are unable to present key documents because you or your staff can’t figure out how to make the software do its job? This is the ultimate argument for outsourcing trial support. At the same time, no one knows your case or your documents the way you do. Retaining a consultant for discovery or trial often requires spending hours explaining the case, describing its particular characteristics, and familiarizing a whole new group of people with what you are trying to prove and how. Bringing in a consultant or vendor will not necessarily save you time — besides explaining the case, you will have to detail your expectations to the vendor so you get the desired results. If you try to save time by nothiring a consultant when you really should bring in an outside expert, you may end up with a disaster on your hands — and then you’ll need a consultant to clean up the mess. Here are a few tips for managing your outsourced projects: • Communicate, communicate, communicate.Ask for frequent updates from your vendor. Call the vendor for status updates, just to keep them on their toes. • Think about every problem.When problems or issues arise, there is a tendency to want to give immediate answers. However, the smart response is to hang up and take a moment to think it over. Your first response may not be the wisest. For example, a coding vendor calls and says they have come across documents that don’t seem to conform to any of the agreed-upon document types. My initial inclination might be to make the documents fit into one of the existing categories. A smarter response would be to look at the documents in question and map out whether they merit their own category. • Engage the attorneys.If you are a manager or staff member, do your best to get attorneys involved in the project planning stage. You will find that, while being involved in a lengthy project planning meeting or call may be frustrating to attorneys, they will often have an “outside the box” perspective and will be able to explain their needs more effectively than if this important information goes through an intermediary. The process of choosing a vendor and managing an outsourcing project may be time-consuming, but if you choose wisely and manage the relationship carefully, it may make your job a bit easier. This article was distributed by the American Lawyer Media News Service. Chris Janak is practice support manager in the New York office of Kelley Drye & Warren. He can be reached at [email protected].

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