It's Time For Law Firms To Start Loving And Leveraging Data
By Barry Wiggins & Jaron Luttich
February 24, 2021
Law firms, and the lawyers that practice within their walls, often have a love-hate relationship with data.
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No, quantity in and of itself is not the issue. Instead, it is the quality of the data — or more Jaron Luttich Barry Wiggins precisely, the lack of quality data, i.e., good data — that lies at the heart of the challenges facing law firms.
Quality problems with data can arise from any number of causes, including how the data has been gathered — often using inconsistent sets of instruments — or how it is measured, often using a shifting series of metrics and benchmarks. These issues are especially apparent in a major source of firm data, litigation.
The litigation process lacks a coherent and standardized structure around which information can be organized in a consistent and systematic way, and without a standard structure that ensures common metrics and benchmarks, industry participants will continue to struggle to utilize fully and effectively the technologies needed to meet increasing client demands for the efficient delivery of litigation services.
Firms that recognize the fundamental importance of structure to the litigation process — and to the data associated with it — and then act to provide that structure are in the pole position to utilize existing tools to deliver, track, measure and assess litigation training, case management, billing or timekeeping, the value of work product, and, ultimately, outcomes.
The ability to create, organize and exploit good data has never been more important for law firm survival. Even before firms had to grapple with the effects of COVID-19 on their operations and consider new ways to provide client service through a dispersed workforce, law firms needed to harness the power of good data to be successful.
Moneyball and Litigation: The Importance of a Standard Structure
By Vivek Hatti & Ryan Hudson & Jaron Luttich
June 4, 2020
Litigation has a data problem. Ask anyone who has ever looked at the existing litigation billing codes. One code is “analysis & strategy.” Of what? Of everything. That’s why this code alone accounts for a massive number of hours billed by outside litigation counsel.
Every year in-house counsel pay millions of dollars for this code. It infuriates them, but they have no other option. Outside counsel who enter these codes are equally frustrated. To them, it’s like being handed a wooden ruler with all of the numbers sanded off and told to measure 3 ⅝ inches. So they do their best and pick a code (often one that doesn’t really capture the work being delivered).
With this shaky foundation, the technology being built on top of it is just as shaky. The litigation market continues to layer new technologies on top of flawed data, to parse and repurpose it into marginally more useful constructs.
Many litigation industry players are trying to be the Billy Beane of litigation, unlocking the Moneyball value of data that others miss. Moneyball analogies are frequent. In fact, a quick google search for “Moneyball and law” or “Moneyball and litigation” yields countless results.
So why hasn’t baseball’s Moneyball reality been realized by litigators? Why does Moneyball work for baseball but not litigation?
Making Law Firm Panels Work For The Cost-Conscious GC
By Vivek Hatti & Jaron Luttich
May 16, 2020
Rome was not built in a day. The same can be said of the value that an enterprise receives from its legal advisers.
The business of law is built on long-standing relationships. Company executives must feel comfortable that their lawyers understand the nuances of their business, its strategy, and their goals over the short, medium and long terms. Of course, one need not mention that trust and secrecy are integral, even foundational, to the relationship.
The intersection of the law with the realities of business is a complex calculus that gets easier to solve over time. There is intrinsic value to the enterprise in avoiding repetitive reeducation of counsel. Did you absorb any version of calculus in a semester, much less a day?
Successful Separation Requires Structure
By Jaron Luttich
April 13, 2020
Learning to navigate the pitfalls and perks of Zoom has been fun. Thankfully, being an expert in Zoom is not my job nor the job of those I interact with regularly. We lawyers all have a high tolerance for the fumbling and bumbling of meeting and presenting over this newly mandated medium as most of us suffer the same blind spots when it comes to such technology.
Those blind spots are due, in part, to the fact that law firms are inherently insular institutions. They have the privilege of holding secret their clients’ most privileged secrets. Covid-19 challenged that culture by disrupting how law firms operate. Opening hundreds, maybe even thousands, of new connections between their dispersed professionals and sacred client files was not their first choice. In spite of that, I’ve been impressed at how firms of all sizes have managed to make this transition rather quickly. (A quick shout out to the receptionist in an office of Morrison Foerster that seamlessly connected me to two different colleagues working remotely without even the slightest hint of struggle in doing so at a distance.)
The shift to working-from-home was possible for these firms because there was a roadmap already in place providing guidance on how to make it happen. Indeed, even the most insular of firms had some form of framework for remote access. The requirements and vocabulary of remote access was able to be scaled because there was a standard -- a roadmap in this analogy -- that satisfied three essential criteria:
It could be shared, it could then be implemented and tracked, and it could be monitored for compliance (security) and performance (productivity).
Unfortunately, the success at scaling these remote connections has shined a light on a practice that has no such standard method: litigation.
Litigators get their moniker not from a badge of expertise but from the scars of their struggle. Law students are not trained how to litigate, and law firms have no economic incentive to train their new lawyers. Instead, litigators spend 8 or more years on a death-march to reach basic competency. And even then, their ability to understand how what they’ve learned about litigation fits into a single case or a massive multi-district-litigation is hampered by the siloed nature of most law firm practice groups. Historically, lawyers determined to practice litigation have managed to fight their way to success, sometimes assisted by a mentor, but often not. And in today’s new normal of remote work, how can even the basics of litigation be shared when there is no training?
Ongoing litigations will likely suffer, too. Case management tools that every litigator assigned to a case can access, no matter their location, are powerful pieces of software. They do little, however, to inform a lawyer in Los Angeles as to what their colleague in NYC did all day, what strategic options have been exhausted or those that remain, or even whether the new version of a file is the one being filed with the court. Due to the haphazard -- at best -- nature of litigation education, every litigator has developed their own set of coping mechanisms for managing their cases. These unique habits are rarely understood even by other litigators within their own firms. As a result, deadlines might be imperiled, and even more importantly, strategic options for both plaintiffs and defendants will be overlooked because there is no existing standard that can be widely adapted and implemented to track old cases or inform and guide new ones.
The new normal will also have a major impact on another critical component of litigation: how to monitor and control legal spend from afar. Moreover, the cost of litigation has been far from transparent for decades and the challenges associated with creating and using accurate metrics are only exacerbated now. Indeed, many law firms don’t know how much it actually costs to deliver their own litigation services and although their bills are often detailed, the explanations are not part of a method to measure performance. Similarly, those same bills submitted to clients give little insight into the value of the work product ultimately delivered by the litigation team. Without a standard method to monitor timekeeping that connects directly to work product, both the law firm and the client are ill equipped to make rational economic decisions even as they confront economic uncertainty.
Why were so many firms able to roll out connectivity to their staff seemingly overnight? It was because their IT departments operate on a standard structure that afforded their professionals the chance to surpass our expectations.
Litigators are some of the most talented practicing attorneys, and they often achieve great things without the benefit of a standard structure. That said, attorneys and their clients have been demanding a standard that can inform training, case tracking, and timekeeping for years (See “‘Speaking the Same Language’: Leaders From Big Law Make the Case for Metric Sharing”, Texas Lawyer, 5/23/2017). But now, the extent to which litigation has trailed its peer professions will be laid bare by an unexpected pandemic.
And the sub-optimal economic realities of most law firms and corporate clients means that the litigators that adapt and adopt a standard litigation architecture will be the ones that avoid the fumbling and bumbling of their cases for which tolerance is fading fast.