The Rate of Review: A Legal Oxymoron

The American linguist, Noam Chomsky, once created the sentence “Colorless green ideas sleep furiously” to express the idea of an oxymoron, a sentence that was grammatically correct but did not make any sense.  We can read this sentence fine but it lacks any meaning.  Although nonsensical, we come across oxymorons all the time.

In a recent job posting, a staffing agency looking for contract attorneys asked applicants to include a “Rate of review (how many documents do you review in an 8 hour day)” on their application.  How does one respond to such a question? If you pick a high number that implies you are not carefully reviewing, and if you pick a low number you won’t get the job.

Perhaps this is a trick question to see if the applicant really went to law school. All attorneys should remember that one ubiquitous answer that seemed to get us through our law professor’s leading line of questioning: “that depends…”  If there is anything that law school taught us, it’s that there really is nothing that is black and white in the law, except maybe certain rules of procedure.  Doesn’t the same rule apply to barred attorneys who are paid to review documents for a certain legal matter?  Apparently not based on this job posting.

This qualification reflects one of the inherent problems in the current landscape of electronic discovery where many value speed over anything else, at least at the review level.  The agency quoted above was looking for attorneys to assist in a document review, but its posting showed that what they were really interested in were just the numbers – “How many can you do?”  Asking for a “rate of review” is concerned solely with the speed of organizing information rather than reviewing the substance of a document.  Unfortunately, the legal review process is becoming more and more a matter of organizing information in different folders in an effort to sift through a large number of electronic documents in a manner as efficient as possible.  Organization is important to any business practice but when it impedes the time necessary to carefully review a document, there could be negative consequences. There is no shortcut to a quality review as the recent ediscovery malpractice case, JH Manufacturing vs McDermott, is making painfully clear.

Placing a formulaic rate on a document review undermines the whole review process.  We can see this if we note the etymology of the word “review”.  It combines the prefix “re” – meaning again, with the root “view” – meaning vision or to look at.  To review means to look at something more than once.  This implies a standard of care and thoroughness that is more than just glancing at something and putting it away.  To review requires an in depth examination of the matter.  This is why when a matter goes to a judge, we say that matter is under judicial review.  Judicial review, like legal review, asserts this sense of reading, looking it over, and thinking critically before a decision is made.

The review process is essential for the practice of law because it is the skill that attorneys are trained to perform and the service they provide to clients.  The review process requires analytical and critical thinking which involve looking at the facts in the context of a case, applying applicable instructions, rules and/or laws, and making an informed recommendation.  This expertise is why clients hire attorneys to review their documents in response to a document request in the first place.

The review process does not necessarily mean that each item reviewed has to take an extensive amount of time.  That will depend on the particulars of the case matter, such as the composition of documents in the review set, the type of review, and the requests for production. There are some things that can be reviewed instantly and be determined on their face, prima facie. For example, an advertisement that has nothing to do with a matter can be instantly marked as “not relevant” and discarded.  There are other documents, however, that may be long, complex and relevant to the case.  These require actually reading the document and navigating through it before making a call.

Furthermore, many times the review process requires making a call not only with respect to a document’s general relevance, but also to its particular relationship to an issue, whether its privileged, and whether it is of special importance to the case.

There are myriad factors involved in a document review.  The time it takes to review a set of documents per day varies with the matter, and depends upon the nature and scope of the document request, the role of the custodian being reviewed, the document type and length, the percentage of responsive documents in the set, and perhaps dozens of other factors.  There is not set formula for a review. What this process requires is a flexibility that is determined on a case by case basis.

So when an agency asks an attorney, “how many documents can you review a day?” the only answer really is, “that depends [moron].”

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