10 Steps for a Successful Contract Attorney Document Review
By Julia Hardinger and David Tanenholz
Hiring contract attorneys is an effective way to staff document reviews of any size. Proper planning and management ensures that the benefits of using contract attorneys will not be outweighed by technical mishaps, substantive misunderstandings, and inconsistent coding.
The following is an outline of our firm’s Top 10 Steps to a Successful Contract Attorney Document Review. This list is intended as a starting point and as a discussion guide for the principal attorneys on a case. We encourage you to contact our office for additional information that will help guide you through each step of the process.
Our goal is to help our clients anticipate all potential pitfalls of large-scale document reviews. Surprisingly, five of the 10 steps occur before the contract attorney team is assembled.
The person selected to oversee the review must be able to successfully implement and complete each of these steps:
Steps 1 through 5: Preparing for the Review
Understand your production goals.
The goals of the production may be determined by the client, the court, opposing counsel, or some combination thereof. Your very first step should be to understand exactly what you are attempting to accomplish by the end of the review. This includes the form and technical considerations of the production, as well as the litigation objectives the trial team is trying to accomplish. If you jump-start the review too quickly, you risk wasting valuable time and resources moving in the wrong direction on issues that could have, and should have, been anticipated at the onset. Establishing the production goals may require extensive negotiations with opposing counsel. Make sure that your goals are memorialized in writing and review them with the trial team and the client.
Analyze and index the document collection.
There are two main reasons why you should have a thorough understanding of what types of documents were collected. First, you will likely be asked to defend the collection method at some point during the case. Opposing counsel may challenge the validity of the collection and/or allege an insufficient production. You need to be ready to justify each step that was taken during the collection process. By contemporaneously memorializing the collection protocols, you stand ready to defend challenges that may come months or even years after the collection. This is especially important if the collection was performed by your client or an outside e-discovery vendor.
Second, this information will be very valuable to your review team. By providing background information about the nature of the files and from whom they were collected, you give your reviewers important context from which to view the documents. This information will make their review much more accurate.
Test the review software.
There are dozens of document review platforms on the market. No matter which platform you choose, you should have a thorough understanding of how it works and the most efficient way to use it. A very important part of this step is confirming that the collected documents are processed correctly and merged seamlessly into the review platform. With the explosion of new types of communications media and documents (such as text messages, instant messages, voicemail, etc.), it is essential to confirm that all classes of documents are uploaded correctly and will be fully viewable to your review team. Failing to confirm this at the outset may lead to unnecessary and costly interruptions to your review.
At the end of your testing session, you should draft instructions for software use.
Draft a review manual.
A comprehensive review manual is the heart-and-soul of a well-managed and efficient document review. The manual communicates to the review team precisely what items the trial team is looking for, and why. It also serves as a reference guide throughout the review for key concepts, terms, rules, definitions, and issues.
Often, review teams are asked to review documents aided only by brief bullet-point lists of key words or issues. By failing to lay out the “big picture” for the review team, you risk missing key documents or issues that may not have been explicitly mentioned in the initial handout. Depending on the complexity of the review, your manual might include one or more of the following sections: an introduction to the case, detailed client history, allegations and defenses of each party, summary of relevant law and legal theories, and substantive review standards for legal issues, including: relevance, confidentiality, and privilege. It is important to update and revise the Review Manual as the review progresses. The issues and documents discovered by the review team will often drive the legal issues in the case, and the manual should be updated accordingly.
Execute a test review.
Before your full team begins its review, conduct a test run using the software and the review manual. Code documents for at least one full work-day to give yourself a solid idea of how quickly documents can be coded. This information will assist you in determining how many contract attorneys will be needed and for how long. This also gives you sufficient time to correct any errors or ambiguities in the manual.
Steps 6 through 10: Managing the Review
Draft working guidelines and stick to them.
Your review team will likely be comprised of numerous individuals with varying experiences in temporary document review projects. You should be prepared to answer questions on the first day of the review and perhaps even before the review starts. Your working guidelines should cover issues including: permitted working hours, dress code, overtime policy, inclement weather policy, and internet use. Two of the most popular questions we hear from contract attorneys are: (1) “If we work overtime, will we be reimbursed for dinner and transportation?” and (2) “Can we work from home?” You should have your guidelines approved by the partner in charge of the case as well as your Human Resources department.
Assemble and train your review team.
If you elect to staff your review through a contract attorney agency, you should solicit bids from several different agencies to ensure that you obtain the most competitive prices. You will need to provide the agency with specific details about the project, including the anticipated length of the review and whether the attorneys need any special skills, such as fluency in a foreign language or special technical knowledge. The more detail you can provide the agency, the better.
In training your team, you should be prepared to teach them as much as possible about the issues in the case, your client, and especially any industry specific lingo, jargon, abbreviations, and acronyms. In certain cases, you may need to focus your training on special issues such as finance, accounting, science, or technology. Consider the review team’s questions carefully and revise the training materials accordingly.
The final portion of the training process should deal with the technical aspects of the review, including how assignments are distributed and completed, and a thorough overview of the working guidelines.
Track review status using metrics.
Because of the varying types of documents and data normally found in most reviews, it is necessary to establish a meaningful metric or standard by which to measure the progress of the review. The proper metric to use will depend on the nature of the review, and may be expressed by some combination of pages, documents, document families, megabytes, or some other measure. Tracking the day-to-day progress of a large document review (or even a small review) can be an onerous task. This step is essential, though, for three key reasons:
(1) It allows you to report the status of the review to the trial team and/or the client. The document review often greatly impacts the overall budget and case calendar, so the trial team decision makers need real time information about what has been accomplished and how much money has been spent.
(2) You need a way to measure the performance of your review team and to be able to identify top performers and potential problems. By identifying your “stars” and rooting out your underperformers, you help maximize the overall productivity of your review.
(3) You may need to justify the pace of the review and/or the overall cost to co-counsel, the court, or opposing counsel. Be ready to demonstrate that you are running the review in the most efficient and cost-effective manner possible. This is especially true if you are asking for cost-sharing or additional time to produce documents.
Conduct quality checks for the project and individual reviewers.
The contract attorney market is full of bright, enthusiastic and motivated attorneys. However, even with such diligent reviewers, there is always room for reasonable minds to differ on the interpretation of documents and review codes. One of the keys to a high-quality document production is consistency. Therefore, you will need to conduct thorough substantive and technical quality checks throughout the review, especially at the beginning.
Well-devised and frequently applied quality checks can minimize careless errors, expose unclear instructions, resolve logical inconsistencies, and identify underperforming individuals. Catching these errors quickly is critical to minimizing extraneous review costs.
Staffing a case with contract attorneys allows you to build a highly-qualified, yet flexible, team. This affords you great latitude to ramp the review up or scale it down as needed. However, everyone appreciates being treated like a professional and values as much notice as possible when the project pauses or concludes. While the case itself may not suffer if your contract attorney team is abruptly or summarily dismissed, doing so is almost never necessary, especially if the review is managed well. By granting your review team reasonable notice that their job is about to end, you are expressing your appreciation for a difficult job well done, as well as extending a basic professional courtesy. By respecting and appreciating your contract attorneys, you make current and future projects easier to staff and manage.