Document review is one of my favorite topics.
There, I said it. Condemned to dorkiness forever. Worse, consigned to the category of having a bent for the mundane, rather than the soaring flights of appellate briefing or the scintillating repartee of court. But bear with me while I argue for why it’s good and how as an industry, we can preserve its benefits.
I’m not sure that document review is necessarily mundane, but there’s certainly not much adrenaline to be found in it and it has been permanently stereotyped as a repetitive, low status task that was once the province of young associates. As it turns out of course, young associates don’t do it anymore. Or I devoutly hope they don’t. It’s been at least ten years since young associates (in any type of firm) were an economically reasonable work force for document review.
However, I’m one of the last cohorts of lawyers that really did cut their teeth on document review, before it was economic malpractice to expect it of me. I still think young associates should do it, but under fairly controlled conditions. These are the conditions that made document review good for a junior associate, in 2000 to 2003:
- There weren’t nearly as many documents. The business documents in my cases were usually about four years old, and in many cases more than ten years old. In the early to mid-1990s the volume of business email and other electronically stored information generated in corporations had not yet ballooned.
- Much of my time was spent evaluating and categorizing documents that had been produced to my clients, not making broad general determinations about responsiveness (although I did some of that too).
- The electronic discovery and document review software industry was still in its infancy. There weren’t many choices and the few options presented documents in a linear fashion.
- The lower volumes of documents made linear presentation appropriate.
Here is how document review benefitted me:
- I immersed myself in the facts. I got to know the slang and terminology of the business, the witnesses’ voices and relationships, and the specific types of documents that flowed through the veins of the business.
- I learned how to extract evidence from chaos. After playing in the boneyard with the facts, I could see patterns and relationships and determine if they matched the existing theory of the case.
- I learned how to build a narrative from documentary evidence: which documents were good for witness prep, which ones were good deposition exhibits. I learned how to prioritize and aggregate the pieces of the puzzle.
The reasons why young associates should not be doing document review now include:
- Volume: there is now so much information, that is so much more duplicative, and contains so much garbage that no human should be reviewing large amounts of ESI as a matter of course, much less a highly educated human asset billed out at hundreds of dollars of hour.
- Staffing: law firms no longer have “excess” associate hours that can be absorbed by document review. Firms are hiring fewer new associates and clients are less willing to pay for their time doing any task, much less one that is perceived as menial.
- Complexity: review software has become more sophisticated, requiring more training to use effectively. There are also more complex data types to review, such as structured databases and social media. While much of document review involves the same basic tasks (binary decisions about whether material is privileged and whether it goes out the door at all) the tactics and available tools for doing so efficiently have changed. Different types of review call for different software, which can in turn require different work flow and process management to make them most effective.
- Effectiveness: higher volumes of lower value documents, combined with more pressure on associates to do more complex, higher value tasks means that associates spend less time reviewing and what they review is less valuable. And the infrastructure investment in a review project is likely to be more complex than it was ten years ago, whether that involves technology assisted review (TAR), defensible sampling methodology, tiered review or anything else.
However, all of the benefits of learning a case via immersion in “primary source material” still remain. New litigators who can’t spend large amounts of time reading invoices, correspondence and other topical minutiae are missing an important perspective. I don’t think there are simple, standardized ways to recapture that value because case sizes and economic constraints vary so much. Here are some preliminary thoughts:
Thoughtful use of TAR: TAR methods and software are still in the experimental phases. People have been saying for at least five years that TAR is going to eliminate human review. But it hasn’t and it is extremely unlikely to become “plug and play” unless it develops true artificial intelligence. However, it can be used to reduce volumes and take out “white noise,” creating a review universe that would be manageable and meaningful for new practitioners.
Residency or internship-style training for new attorneys: The professional training model for lawyers is problematic in ways well outside the scope of my topic here, but one area where law firms and other employers of new attorneys have to make decisions is how to give attorneys meaningful on the job training without charging clients by the hour. It would be a simple matter to give attorneys rigorous, immersive training in real case documents if law firms didn’t feel they didn’t needed to have those attorneys as economically productive billing units the minute they pass the bar.
Professional project management: for many years law firms (and possibly government agencies as well) simply assumed that anyone could do document review and that if you pointed associates at boxes of documents a useful set of documents would arrive on a partner’s desk some time later. That might have been true when there were fewer documents and documents had more marginal value. Now it is critical to have staff whose professional function is to assure that the right tools are in place and fully supported, the users are effectively trained on the tools and there’s a quality assurance process in place. Lawyers generally don’t have all of those skills and they certainly don’t develop them unless they have an opportunity to learn them. Deciding which personnel are the best for discovery tasks frees up lawyers for case engagement and fact development
Lawyers should still be doing document review, but in the context of better and more informed management and use of technology.