For many lawyers, the drumbeat of corporate clients for lawyers to achieve greater control over electronic discovery is now inescapable.  But virtually all of the attention has focused on the costs of processing and review across the gigabytes and terabytes—almost no dialogue has focused on the truly legal services that lawyers perform to move from here to there in the e-discovery lifecycle. 

But the lessons we continue to learn on how to achieve efficient, defensible review of the substantive records and potential evidence can be applied to the delivery of the legal services themselves.  Indeed, electronic discovery may be one of the prime fields of legal services in which “legal project management” (i.e., the integration of legal services with the methodologies of project management) can be advanced with significant favorable impact.

How can this be done?  This blog presents the first of five steps which provide the framework for achieving a defensible process.  Apply these steps to the next project on your desk and you will immediately realize that virtually any case, no matter its complexity, can be improved.  Apply these steps to e-discovery and you will significantly improve your efficiency, lower your costs, and gain your client’s confidence that you are managing their case with the business skills of effective project management.

1. Identify the rules that govern.  Most lawyers believe they know the rules that matter through experience. Often, we overlook the essential task of identifying the rules, and figuring out how they align, conflict, or leave gaps—all of these create risk.  Instead, before you compose your work, take a moment and write down all the rules that control what your letter, pleading, memorandum, deposition, or report need to navigate.  You will be surprised—many of the rules you tend to take for granted—grammar rules, format rules, media rules (size of paper), citation formats (Blue Book or not). 

Multiple studies indicate that over 50% of information technology development projects fail because all of the requirements are not effectively identified and captured.  As a result, the development work falls short and requires added code, patches, additional training, or other corrective actions that inflate the cost and decrease the return on investment.

Experienced lawyers reviewing legal work product are often evaluating whether all of the relevant rules have been executed.  But they also are relying on memory, rather than any published inventory of the requirements.  As discussed in the blog post last month about checklists, any list reduces risk, improves consistency, and provides a ready basis for documenting what has occurred.  The list is a built-in record of defensibility. 

In electronic discovery, the rules to which any legal work product should conform come from both legal and technology sources.  Different systems, applications, record formats, metadata—all place different demands on how a lawyer describes them and plans the management activities around them.   Different courts, different legal standards, different e-discovery protocols—all of these also vary.  So often a lawyer’s assumption they know the rules can handicap their zealous advocacy when reality proves one or more critical rules were overlooked.

Its no surprise to anyone that creating a map of the rules actually works—seeing all of the rules together, and structuring their relationships, provokes you to remember other rules, helps expose inconsistencies and conflicts, and provides you a record that you can retain that indicates you did, indeed, think through and identify the rules as part of the legal services you performed.

But the other amazing value of mapping out the rules is that the complexity also can emerge from the picture.  You can share that complexity with your client as a way of explaining the value of your work, and collaborating differently.  In the end, the process improves the confidence of the client in you and your work product.

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Playing the Game: The Legal and Technology Rules for E-Discovery is a great starting point for learning about non-legal rules that influence every step of electronic discovery. Enroll now to view the RitterMaps that help you navigate all of the rules in your next e-discovery project.