My title reflects two themes of interest (that is, they interested me) at the LexisNexis Counsel to Counsel Forum 2013 which took place in Brighton in November. One was about lawyers (whether internal or external) understanding the business for which they work; the other was about social media as a means of keeping in touch with the rest of the world. The obvious thread between these subjects was awareness and connection, and about knowing of and being known by others.
I was there to join Nick Patience of information management provider Recommind to talk about applying information management technology to business challenges, to proactive risk analysis, to eDiscovery / eDisclosure and to early assessment of litigation and investigations (I’ll stick to “eDiscovery” after this – the venue may have been in the UK but the principles apply everywhere, and everywhere else talks of “discovery”).
The first part of this article covers the value of communication between lawyers and the business, generally and in the specific context of information governance. A second part will report on the social media session itself.
Does in-house counsel care about information governance?
Providers of eDiscovery solutions tend to assume that every in-house lawyer lies awake worrying about eDiscovery – this idea is one of those US imports one struggles to damp down. Solutions providers and litigation lawyers make their pitch as people who are ready to take up the cudgels when the battle commences. Recommind is happy to take that role when needed, but they have a parallel role in helping companies to anticipate the problems and to reduce information risk and expense. For that to work, the lawyers must see a benefit for the business and, perhaps, a benefit for themselves. Reducing the cost of litigation when it comes is a benefit; heading it off by being more information-aware is an even better one.
This has a place in the discussion about lawyers needing to understand the business and keep in touch with it. The management of electronic information should be treated as a mainstream commercial activity, planned like any other project, and eDiscovery should not just be a matter of reacting to court rules or regulatory demands. If the lawyers, whether internal or external, simply wait for the demands, they are missing opportunities to influence decisions and to reduce both risk and costs. The in-house lawyer who boasts that there are three doors between his department and the business, and the external lawyer who sits waiting for the call, are missing opportunities to be involved pre-emptively.
External lawyers might instead stay close enough to the clients and their business to know something about their information systems and the people who ran them. It surely helps both client and lawyer if this is a known quantity at the outset rather than knowledge to be acquired painfully, in a hurry and at high hourly rates.
Engaging with the subject and with others with social media
What I have set above fits into the general theme with which I opened this article, of knowing and being known. The second interesting theme from the LexisNexis programme was the use of social media. The two subjects came together before I had even reached Brighton, with conference tweets showing that the subject of in-house lawyers understanding the business was already firmly on the agenda.
Note that point “before I had even reached Brighton”. An interesting and relevant conversation was going on; the fact that I was 100 miles away from the venue was no bar to my taking part.
I joined in the Twitter chat. The others were talking about in-house counsel (it was an in-house event, so that is not surprising). I extended the subject from internal lawyers to external lawyers – should not they stay closer to the clients in between the transactions, keeping their connections warm, understanding more about the business, and developing their ideas about what they could offer? Mark Smith of LexisNexis (pictured left) said that the problem with this approach is the lawyers reaching for their timesheets for what the clients would see as practice development. I mentioned (as I often do in this context) an article called Big 4 a Reason by Tom Kilroy, Group General Counsel at Genus, which suggests that the big consulting companies manage this idea of a shared and mutual relationship better than lawyers do. Tom Kilroy obligingly provided the reference.
Before I had even arrived, therefore, and thanks to Twitter, I was hooked into a discussion drawing in several people, which had nothing originally to do with eDiscovery but which neatly fitted one of my proposed subjects. It also illustrated the importance of social media as a communications medium, the subject of the event’s closing panel.
At lunch, I picked up an anecdote about a more direct way of keeping in touch with a business. It was the story of a senior lawyer at a well-known firm who made it his business to get out, not merely to meet the clients, but to mingle with them – to ask for a desk somewhere in the office and stay there for a day, without charging for it, in order better to understand the business. It is only a step from there to my idea that litigating lawyers might usefully spend some time, and without rendering a bill, in getting to know in outline the answers to the questions which appear in the Electronic Documents Questionnaire.
The Information Governance Panel
The opening premise in the session which Nick Patience and I did was that corporate clients ought to appreciate (in both senses of that word) at least the budget requirements in the Jackson reforms. Lord Justice Jackson’s theme was cost control – not just reduction, but transparency and predictability, and it was this which gave rise to the budget obligations. External lawyers did not particularly appreciate the requirement to anticipate expenditure, whether between themselves and their clients or vis-a-vis opponents. They had long got away with asserting that there were too many variables in litigation to enable prediction. Now they were being made to face up to them, at least as between themselves and the court.
Corporate clients, I said, ought to like that. Most were willing to accept that litigation had variables, but so did many other of the projects which they embark on. There was therefore a match between the expectations of clients and the court.
The actual budgeting for eDisclosure is predicated on two things – the scope of disclosure and the methods to be used. The rules had long provided opportunities for lawyers to narrow the scope of disclosure by being ready and able to say of any particular source that, whilst it might be potentially disclosable, what was known about it – its value set against the cost of retrieving it – made it not worth investigating. Those who had a name for narrowing disclosure in this way, by balancing cost, benefit and risk, would be an attractive proposition to clients. Those who had the type of relationship described above were more likely to find a place on corporate panels than those who did not – something one of our corporate delegates agreed with.
There is perhaps some relevant symbolism to be found in this picture of Brighton’s derelict West Pier and a machine for digging stuff out beneath a source of illumination, set against a sunset (or perhaps a sunrise). Or maybe it’s just a pretty picture taken outside the event venue.
Front-loading the costs can save money in the long term
The involvement of clients goes further than that. Lawyers who argue against the upfront investigations now required by the rules say that their clients will not pay anticipatory costs of this kind. That point is reiterated when technology like predictive coding is discussed. Predictive coding requires that senior lawyers get involved at an early stage, making the decisions as to relevance which the software algorithms then replicate across the wider body of data. Traditionally, lawyers put lower grade (and therefore cheaper) staff onto the early stages of disclosure, bringing the senior strategists to bear on the case only when this first stage has been accomplished. It needs the client to agree, and if necessary dictate, that this is the wrong way round, and that earlier and better informed decisions will be made if senior people are involved at the outset, particularly where their focus is on volume reduction.
I recounted a conversation which I had recently had with a barrister who had been involved in an early conference call to discuss case strategy. Senior people were present from the clients and the experts, but the solicitors provided a junior who was not able to contribute meaningfully to the discussion. There is therefore a recurring theme of short-sighted focus on immediate costs rather than viewing the project as a whole.
The benefits of this early attention are emphasised when one learns, at least anecdotally, that many cases are settling much earlier when the clients see the costs budgets. That may not seem attractive to an external law firm which benefits from protracted litigation, but is something which clients appreciate.
Social media use to make and keep connections
The closing panel focused on the use of social media as a way (that’s a way, not the way – it is not a substitute for old-fashioned personal communication) for internal and external lawyers to keep in contact with the business. This will be covered in a separate article.