Discovery complexity grows exponentially when more people are involved

Re-think how you’re doing the work, not who is doing it

Most general counsel don’t know it, but the guy who’s killing them is Robert Metcalfe, the founder of 3Com. Metcalfe’s law about the value—and complexity—of networks is the amplifying force behind the GC’s increasingly impossible conflict between risk, cost and quality. And for those who understand its implications, it suggests some radical but achievable changes in law department management.

Today’s GC needs to control cost. We’re all aware of that. For most, more than half of the outside counsel budget is spent on litigation, two-thirds of which is consumed by discovery. No surprise there either—discovery is ground zero for the cost control crisis faced by law department managers.

With the old model of law firm associates conducting the review, the client could rely on motivated people, with skin in the game, to manage those interactions and deliver insight necessary to win the case. But now, the client can no longer rely on either the quality of the reviewer or osmosis among teammates to mitigate risk. The industry’s response? Throw cheaper people at the problem.

As the magnitude of the discovery challenge has increased, instead of rethinking how the work gets done, we’ve simply replaced law firm associates with temp attorneys. The quality of discovery is suffering mightily as a result, but at least we're saving money, right? Unfortunately, the savings we think we’re getting through cheaper reviewers are largely fictitious. While $50/hour may feel gratifying, we’re failing to account for other more meaningful cost inputs.

When doing a million of anything, whether reviewing documents, writing lines of code or producing automobiles, the trick to optimizing risk, cost and quality is in the application of process disciplines, project management and quality control procedures, supported by technology and tools. Today, there’s a lot more lip service than depth in capability. But it’s not always easy to make the distinction.

Unfortunately, just about everyone has learned to say “process,” “Six-Sigma,” and “LEAN.” A genuine exercise to get underneath real process requires an investment of time on the part of the buyer.

Contributing Author

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Paul Carr

Paul Carr is the COO of Axiom, a 900-person new-model legal services firm that serves nearly half of the Fortune 100 across ten offices and...

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