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As the world goes flat, the law goes flat, and companies and law firms have opportunities to think differently about how legal services are performed and managed. The exponentially increasing volume of information that must be managed, the budget constraints of in-house counsel and the expectations of courts challenge lawyers to evolve. No longer locally but globally, law firms have opportunities to partner with vendors and utilize technological advances that promise to make their work faster and more cost-effective. These opportunities have potent potential to change the way legal services are staffed and managed. Many firms will find one option and embrace it as the solution, without recognizing that the best tool belt carries many tools. Savvy consumers of legal services, however, will seek out the best source for the work to be assigned. The right tool for the job may be a vendor in India that can perform subjective coding of a large volume of less significant documents at the lowest price. It might be one’s own firm that is technologically advanced and able to put a number of people to the task at a reasonable rate, offering the benefit of the experience and credentials of lawyers admitted to practice in this country. It might be a conceptual search tool, using machine rather than man to make the first cut. Consistent with the highest ethical and professional standards of practice, most law firms can do more to improve the services they provide and lower the cost. Partnering with clients to evaluate the task and select the best source from a collection of available tools will allow law firms and their clients to meet the challenges and exploit the opportunities of the early years of the 21st century. By the year 2000, the availability of less expensive computers, the explosion of e-mail communications and the development of powerful search engines had combined, in the words of the chief executive officer (CEO) of Infosys Technologies Ltd., Nandan M. Nilekani, to “[create] a platform where intellectual work, intellectual capital, could be delivered from anywhere. It could be disaggregated, delivered, distributed, produced, and put back together again.” Nilekani, quoted in Thomas L. Friedman, The World is Flat: A Brief History of the Twenty-First Century 7 (first updated and expanded ed. 2006). Although not spoken in a legal context, these words, referring to a platform of intellectual work, could well be used to describe the practice of law. Nilekani’s words actually precede the analysis of Friedman in the updated edition of his book, in which he examines the forces he contends have combined to flatten the world. Yet most, if not all, of Friedman’s flattening forces relate directly or indirectly to the practice of law. Take Friedman’s first flattener: The fall of the Berlin Wall was followed, not insignificantly, by abolition of trade control in India and a transition to global thinking by business in the United States. The flatteners continue in Friedman’s analysis, with obvious parallels to the practice of law. With the development of the Web and of workflow software, law firms were able to develop extranets to manage litigation pleadings, document databases, the work of vendors and the work of other firms in communication with their clients over secure channels. Outsourcing and offshoring operations have formed to offer certain legal services at lower cost in competition with U.S. firms. Also, with insourcing, companies bring in business partners to enable the business to operate globally. In addition, individuals search for knowledge on the Web and within their own company’s sources of electronically stored information. These developments are coupled with what Friedman labels “the steroids” of exponentially increasing storage capacity for electronically stored information, instant messaging and file sharing, Voice over Internet Protocol (VoIP) services that render global phone calls as inexpensive as local calls, videoconferencing, advances in computer graphics and new wireless technologies. Law firms on steroids Law firms with a national practice, and many that practice locally, represent companies that are operating on a daily basis on these steroids. Most of the firm’s clients are global, either because they now operate in many countries outside the United States as a result of mergers and acquisitions, because they sell their products in the global marketplace or, if nothing else, because they operate on the playing field of global competition. For most companies, the day in which the law department was isolated from the global business perspective of the company are long gone. The in-house lawyer travels internationally to do deals, counsels regularly with business executives outside the United States and is challenged to understand and support the company’s global growth and competition. Apart from international lawyers, outside counsel have remained focused on the United States, especially in litigation. The in-house lawyers they serve, however, are already working in and thinking about a much broader territory. At least a couple of years ago, lawyers started exploring a concept called “unbundling” legal services. Unbundling allowed lawyers to carve out particular roles, for example in litigation, without taking responsibility for the entire matter. Initially, unbundling was viewed as a way to provide some service to clients who otherwise might not be able to afford legal representation. Leonard Post, “Law Firms Find New Revenue in ‘Unbundling,’ ” NLJ, July 4, 2005, at 1. Beyond the concept of providing affordable legal representation, however, the buzz word “ unbundling” has become a favorite of certain in-house counsel. According to Jonathan Goldstein of Pangea3 LLC, a leading legal-process outsourcer, “in-house lawyers are keenly interested in unbundling the law firm, by paying for the competent advice they love from law firm partners and avoiding paying for less efficient work of junior associates.” Interview with Goldstein, Jan. 2, 2007. In a similar vein, other vendors, like David Galbinski of Lumen Legal, talk to in-house counsel about dividing legal work into fungible and nonfungible categories, including in the fungible category such tasks as review of electronic documents, contract review, patent application drafting and even legal research and writing. According to Galbinski, “purchasers of legal services are seeking to close the perceived ‘price/ value’ gap in legal services and are ‘unbundling’ fungible tasks to have them performed by U.S.-based contract lawyers or moving them to countries like India.” David Galbinski, “New lawyers: While you were studying, the world became flat,” Detroit Legal News, Nov. 9, 2005, at 1. Realistically, a company involved in mass tort litigation will choose to leave responsibility for protecting its privileged documents and careful review of the e-mails of its CEO to trusted U.S. counsel. The same company, however, may partner with that firm to have a large volume of its less significant documents coded by an experienced vendor in India. It may leave to experienced lawyers in the United States the legal research and writing that serve as the foundation for its scientific evidence defense or the defeat of a significant class action. Yet, it may have a 50-state survey performed by lawyers who are not licensed to practice in the United States, employing the U.S. firm only to supervise the research and evaluate the resulting product. Law firms were previously unbundled as in-house counsel chose to form virtual law firms by cherry-picking lawyers with particular talents from their firms and asking them to work as a team in the company’s defense of significant litigation. These teams included the trial lawyers, national discovery counsel, science counsel and sometimes settlement counsel. Teams of the future may well also include the legal process outsourcer, e-discovery vendor and, with the amendments to the Federal Rules of Civil Procedure effective on Dec. 1, 2006, a team member from the company’s own information technology (IT) department. The pessimist will view these predictions as a discouraging message to law firm associates and partners concerned about the profitability of their firms. The optimist, however, will recognize a world of opportunity. With the rule amendments, the role of coordinating discovery counsel may expand to the coordination of the company’s disclosures of sources of electronically stored information and strategic planning for e-discovery. On a related front, the term “legal architect” is currently being used informally by members of Working Group I of the Sedona Conference to describe the role of the legal strategist who must have command of the facts, the law and the processes implemented to support the litigation, including the process of document collection, processing, review and production. Also, there has been a layer of work unassigned by in-house counsel and going undone due to economic constraints. In the unbundled world, law firm associates who are trained in specialty areas of practice and are technologically capable still have much to offer. In-house lawyers will find ways to assign the previously unassigned work, and law firm partners will have the opportunity to serve as legal architects, guiding and organizing global teams, combining the services of law and technology, and individually performing work of higher value. Outsourcing and offshoring Particularly the offshore component of outsourcing is a recent phenomenon. In 2000, Sanjay Kamlani, formerly a senior manager with PricewaterhouseCoopers, became a member of the founding management team of New York-based OfficeTiger. OfficeTiger, purchased in 2006 by R.R. Donnelley & Sons Co. as a business-process outsourcing (BPO) provider, offers services including financial analysis, word processing, claims processing, litigation support and paralegal services, market research and database services through operations in South America, Europe, India, Sri Lanka and the Philippines. More recently, Kamlani left OfficeTiger to co-found the legal-process outsourcing (LPO) service, Pangea3. Based on its Web site, at www.pangea3.com/index.htm, Pangea3 “provides legal process outsourcing services, utilizing client dedicated teams of lawyers and engineers in India and the United States to deliver [a diverse variety of services] to U.S., U.K. and Japanese corporations and law firms at a radically low cost.” If the offshoring of legal work was little known last year, it was certainly brought to the attention of business by a recent article in BusinessWeek referring to 30 attorneys and 50 support personnel “[w]orking in three shifts seven days a week,” to analyze documents for E.I. du Pont de Nemours & Co. Pete Engardio, with Assif Shameen, “Let’s Offshore the Lawyers,” BusinessWeek, Sept. 18, 2006, at 42. While BPO services such as call centers and IT support have become common-in addition to OfficeTiger, Kochar and other firms provide BPO and/or LPO services-much will be written about the ethical and professional issues that arise from the more recent use by U.S. companies and lawyers of the services of LPOs. When the services are provided in India, for example, they are typically provided by lawyers who have been trained in the common law tradition, with fluency in English, but without admission to practice in the United States. Issues to be considered include conflicts of interest, preserving confidentiality and the billing of these services. Although some LPOs have been in operation for a few years, their litigation support work is relatively new. For that reason, it appears that, as yet, no LPO has had its document-retrieval work tested in U.S. courts through, for example, a judicial in-camera review of a privileged document log the LPO helped to prepare or through other discovery challenges. We can expect that different litigants and different judges may react differently to the use of these organizations in the discovery process. Until offshoring of document review is more common, there remains some risk as to how the work will be received by U.S. courts and the extent to which it will be challenged by opposing counsel in litigation. Certainly, a company that uses an LPO because it is reluctant to pay the cost of U.S. law firm review of its documents for production would not want to suffer the sanction of being required to pay for a re-review to be conducted in the United States. On the other hand, as the courts recognize the challenge of processing the vast quantities of electronically stored information and the importance of maintaining an ability to select and produce documents within a matter of months rather than years, many will understand and be open to the offshoring solution, and many companies will choose to bear any risk associated with offshoring due to the significant cost savings. Man versus machine In addition to outsourcing subjective document-coding projects to hire more document reviewers at lower cost, companies are exploring technological alternatives to increase efficiency of document retrieval. These explorations of search-and-retrieval measures are driven largely by the volume of electronic information from which relevant documents must be selected. In addition, courts are beginning to accept and even expect the use of electronic tools and processes. See, e.g., Balboa Threadworks Inc. v. Stucky, No. 05-1157, 2006 WL 763668 (D. Kan. March 24, 2006) (ordering parties to meet and confer on the use of a search protocol, including key word searching). See also Sedona Principle 11 regarding the use of electronic tools. The Sedona Conference, The Sedona Principles: Best Practices, Recommendations and Principles for Addressing Electronic Document Production (January 2004). As these tools, expanding beyond key word searching to a variety of analytic search tools, are implemented, document review should become more efficient. And for each gain in efficiency, fewer people will be needed to review a given quantity of documents within a specified time. In this context, staffing needs are reduced, whether staffing comes from the United States or abroad. Many companies are exploring these ideas with the goal of lowering their costs for document retrieval by outside counsel. One recent study, for example, reported that “using an electronic relevance assessment application and process reduced the chances of missing relevant documents by more than 90 percent.” Anne Kershaw, “Automated Document Review Proves Its Reliability,” Digital Discovery & E-Evidence, 5:11 (November 2005). At an extreme in terms of reducing personnel, Digital Mandate, according to its private research, uses a patent-pending process that relies on random document selection using only three lawyers and a few librarians to find relevant documents to a level of 99% accuracy in about 30 days, regardless of the size of the document population in certain document sets. See www.digitalmandate.com. There are, however, several important caveats to the idea that machine will prevail over human in the future of document retrieval. First, another study, by the Text Retrieval Conference run by the National Institute of Standards and Technology, is expected to be released this year, and we should stay tuned for its results. Second, many believe that search tools are essential for large electronic collections, but as the volume of electronic information increases exponentially, more people still will be needed in addition to the new tools. Assuming that business follows science, we have only scratched the surface of the expansion in volume of electronically stored information. Microsoft Corp.’s “Toward 2020 Science” paper reports that “[t]he Sanger Centre at Cambridge [England] currently hosts 150 terabytes (150 trillion [10 12] bytes) of unique genomic data. Its genome sequence data is doubling each year, significantly faster than Moore’s Law (describing the growth in computer power).” See http://research.microsoft.com/towards2020science. Undoubtedly, both more technology and more people, onshore and off, will be needed if the hypothesis that the volume of business information stored electronically will continue to grow as in science proves correct. Based on the above analysis, one may conclude that document reviewers at U.S. firms and abroad will still be needed in the next decade. The skill set required, however, will dramatically change. Consider a process for document retrieval carried out by a carefully selected team, led by U.S. lawyers who know both the case and the available search and review tools. These teams will be supported by librarians or linguistic experts as well as statisticians who can validate the process for the court. On a more obvious front, while trials may be vanishing, trial lawyers cannot be outsourced. The BusinessWeek article recognized that the offshoring trend “doesn’t mean U.S. lawyers will be getting pink slips, or even lowering their hourly fees. They’re still needed for developing arguments, writing briefs, and other trial work.” Engardio and Shameen, supra, at 43. Likewise, intellectual property counsel who work hand-in-hand with in-house counsel on both the strategy and implementation of the company’s plan for the protection of its IP will continue to be valued. The role of U.S. lawyers in partnering with public relations professionals, both in-house and outside the company, to preserve the privilege and guide a company in its communications during a crisis, and to develop the strategies to prepare for anticipated litigation, will continue to be valued. Likewise, lawyers specialized in financial services, government regulation, health care, legislation and public policy, labor and employment and tax, who are admitted to practice in the United States, are always needed. The question for the future is not whether lawyers will be needed, but how they will be needed. The necessary integration of people and technology will now and in the future require a shift in the culture of how legal services are provided. Law firms that prepare to advise and partner with their clients to find the best source for delivery of the legal services they require, whether under the roof of their firm, by machine with advancing technologies or offshore, will be the leaders in 2007 and beyond. Laura Lewis Owens is a partner at Atlanta-based Alston & Bird, working with the firm’s Atlanta; New York; Washington; Raleigh, N.C.; and Charlotte, N.C., offices. She has 21 years of litigation experience, having served as national coordinating, science and trial counsel. Owens has worked on e-discovery with the Sedona Conference since 2003. The firm has experience partnering with clients to outsource legal services in a variety of ways, but this article does not advocate the use of any one particular outsourcer, vendor or technology.

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