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When I worked as a consultant, I was frequently brought in to fix a mess that someone else had created. When a project has reached the disaster zone, bringing in a consultant is always wise: If he or she mops it up, you can claim credit for your brilliant outsourcing strategy. If the consultant fails, you have someone new to blame. Now that I’m back on the other side of the law firm/consultant equation, I strive to outsource to avoid disasters in the first place. The pace of litigation often forces administrators to make very quick decisions whether to complete a project internally or outsource. Generally, there are three factors that influence that determination: 1. Economics: Does it make financial sense for the firm and/or the client to outsource? 2. Infrastructure: Do you have sufficient personnel and equipment to do the job? 3. Expertise: Can you do the job right? 1. 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 personnel. There is a widespread perception clients are somehow less likely to scrutinize 30 hours of time at $150 per hour then 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 — expertise, infrastructure — that can’t be provided internally. 2. Infrastructure Most law firms do not maintain the kind of equipment and personnel to prepare, scan, unitize 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 (break into discrete documents)? 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. A firm needs 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 by outsourcing. 3. Expertise There are many circumstances in a litigation where there is no margin for error. One of those examples is the forensic handling of electronic evidence. Precision and expertise are absolutely essential in this area. When asked to make a forensically accurate copy of a hard drive, for example, there is no place for experimentation. 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 for the purpose of maximizing 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 insisted. However, 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 with at least the respect you afford the 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 have your equipment fail? Do you want to find yourself unable to present your key documents because you or your staff can’t figure out how to make the software do its job? This is the ultimate case for outsourcing trial support. At the same time, no one knows your case or your documents the way that you do. Retaining a consultant for discovery or trial often requires you to spend hours explaining your case, describing its particular characteristics, and familiarizing a whole new collection of individuals with what you are trying to prove and how. Bringing in a consultant or vendor will not necessarily save you time — but if you choose wisely and manage the relationship carefully, it may make your job a bit easier. Chris Janak is practice support manager at Kelley Drye & Warren, based in New York City. E-mail: [email protected] . Web: www.kelleydrye.com .

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