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The Lawyerification of Litigation Support: Is a Legal Education a Benefit or Just Baggage for an E-discovery Project Manager?

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If you have a legal discovery project that will cost you hundreds of thousands of dollars for data collection and processing, document review, and production; in a litigation with millions of dollars at stake; who do you want managing the e-discovery? A lawyer? A paralegal? A litigation support professional? 

I would say any of the aforementioned professionals is fine, so long as he or she has the right experience, personality, communication ability--and project management skills. It seems, however, that others in the industry touting the importance of project management in e-discovery projects seem to favor one professional background over the others. The focus of the debate seems to be on which profession is better equipped for project management, rather than how any legal professional can benefit from project management training.

The September 1st issue of Technolawyer's TechnoFeature newsletter (I highly recommend you subscribe to this, and Technolawyer's other, free, weekly newsletters) featured an article on project management as applied to e-discovery work. Brett Burney, The Emerging Field of Electronic Discovery Project Management, TechnoFeature (Technolawyer Community), Sept. 1, 2009, available at Criminal Law Library Blog

Brett Burney is Principal of Burney Consultants, LLC, an e-discovery and legal technology consultancy. Those already familiar with the topic will not find anything new in this article, but they are not the author's intended audience. This article is written for lawyers who may be familiar with e-discovery, but have had little or no exposure to formal project management. It attempts to convince them that "[w]hile a lawyer is certainly capable of learning how to logistically manage a project, many would be better served by working with an experienced project manager who can implement the technical discipline required for a successful result." Id.

In support of this argument, Burney makes the following claims, mostly quoting from other published sources, regarding why most attorneys are not in the best position to manage e-discovery projects:

  • "Lawyers are not trained to manage projects...they rarely have the time or patience to rake through each logistical detail involved in supporting a litigation matter."

  • "Formal project a recognized professional discipline....A lawyer who calls himself a 'project manager' is like someone who claims to be an accountant without a CPA license...."

  • "The litigation lawyer provides overall strategy for a litigation matter and is responsible for the critical decisions...[but] is not the best person positioned to 'forecast and plan...and fully understand the resource requirements of each phase [of an e-discovery project]."

  • "litigators are not known for being proactive...[but] reactive litigating is not the way to handle eDiscovery [sic.]."
Id. [Many of the quotes in the list above contain quotes from other sources. I'm too lazy to properly cite all sources. Please see the original article for the original sources of the above claims.]

It is clear that Burney feels lawyers are generally unfit for e-discovery project management roles. Rather than assigning an associate, paralegal, or IT administrator to manage their e-discovery projects, Burney argues that law firms should hire "litigation support professionals." What is not clear is how a "litigation support professional" differs from a lawyer, paralegal, or IT administrator. 

He writes:

Litigation support is slowly becoming recognized as its own profession. Today, it is not enough for a litigation support professional to simply know how to import a delimited load file into a review platform; they must also be aware of current case law affecting eDiscovery [sic], and better comprehend the overall legal strategy of the litigation team they support. They must also possess the "people skills" necessary to communicate effectively with their team, the attorneys, outside vendors, and the firm's clients.
The argument that an e-discovery project manager needs not only technical skills, but also excellent communication skills, should be a familiar to regular readers of this blog. On September 15th I reviewed an article written by Brett Tar, General Counsel of Emag Solutions.  His article made the same point--except it was arguing for the value of using lawyers as project managers for e-discovery projects. Ironically, Tarr's article was published in the monthly newsletter of the Association of Litigation Support Professionals

These two articles on legal project management this month provide the delicious juxtoposition of (1) an article in a publication targeting mostly non-lawyer, litigation-support professionals arguing for lawyers managing e-discovery projects, with (2) an article in a publication targeting mostly lawyers arguing that lawyers should not manage e-discovery projects. This nicely illustrates the lack of clarity in discussions about both the new field of "legal project management" and the more established, but still inchoate, field of "litigation support."

With the poor economy causing large law firm layoffs and hiring freezes, there are many lawyers looking for work. More and more, lawyers are becoming aware of electronic discovery. Those who are not afraid of technology will increasingly seek e-discovery positions that were typically filled by non-lawyer, litigation-support professionals. I expect to see more litigation-support vendors touting licensed-attorney project managers in their sales pitches.

At the same time, like paralegals before them, those working in litigation support are working hard to protect their positions and increase their value by creating their own professional organizations and certifications. In the United States, the most successful of such organizations to date is the Association of Litigation Support Professionals (ALSP), which is developing a certification program. At this point, it is unclear what such a certification will cover. There has been some discussion of creating more narrowly tailor certifications such as an e-discovery certification.

A new organization called the Organization of Legal Professionals was created specifically for the purpose of developing an e-discovery certification. The missions and certification efforts of ALSP and OLP seem to overlap quite a bit. It remains to be seen which will become the de facto certification body for e-discovery.  At this point, ALSP has more momentum and a decent membership base. I think it will be hard for OLP to convince those of us involved in e-discovery to join their organization as well as, or instead of, ALSP and, for lawyers, relevant bar association sections and committees. Competition is good, however, so the more power to them.

Both ALSP and OLP certifications will be obtainable by lawyers as well as non-lawyers, so I expect they will do little to stem the "lawyerfication" of litigation support. If one takes the claims of Burney and his sources at face value, this lawyerfication of litsupport is alarming. If, however, you subscribe to Tarr's more positive view of lawyers managing e-discovery projects, this is a welcome development. So, is legal education a benefit or just baggage for an e-discovery project manager? Burney and Tarr offer only anecdotal evidence. I've seen no research to support the argument that lawyers make better, or worse, litigation support and e-discovery project managers than individuals with technical (e.g., computer science) backgrounds. 

In my experience, a great project manager, like any manager, is great due more to his or her personality, communication, and work ethic than formal training. I've worked with wonderful e-discovery project managers from a variety of backgrounds. Some were lawyers. Some were trained in computer science. Some had a background in HR and staffing. Some were paralegals. A good number were individuals with years of litigation support experience, who picked up a lot of technology and law over the years, were detail oriented yet personable, but had no formal training in any "related" field. 

One area where formal training can improve project management performance, whatever your background, is project management training. Project management education will not make up for poor communication, a poisonous personality, or technophobia. It will, however, help improve an otherwise competent e-discovery project manager's ability to understand and measure the work that needs to be done, to estimate the time and resource requirements needed to do the work, and to track the progress of the work to make sure the project requirements are meet on time and within the budget. It can also help interface with corporate clients' IT staff, who are often more familiar with, and use, project management methods and jargon.

While I don't know of any solid data to back claims for the value of applying project management standards to legal work, the Project Management Institute has sponsored research to make the case for the value of Project Management in general.  I don't know that an e-discovery project manager needs to hold a PMP certificate, but I do feel strongly that a solid understanding of project management standards will improve the effectiveness of anyone responsible for managing an e-discovery project.

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This page contains a single entry by Paul C. Easton published on September 25, 2009 11:41 PM.

Buying a Lathe Does Not Make You a Carpenter: Setting Realistic Expectations for Legal Project Management Software was the previous entry in this blog.

Project Management Tools in the Legal Environment: Can Old Dogs be Taught New Tricks? is the next entry in this blog.

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