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.