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Comment: Process – the Stabilizing Force of the Three Legged Stool

Vince Neicho completes his trilogy for Legal IT Insider with a piece on process – highlighting the importance of the oft mentioned, but essential three-legged stool that is Technology, People, and Process.

By Vince Neicho, Vice President, Legal Services at Integreon

At the tail end of last year, I wrote an article on how lawyers have come around and embraced technology. I followed it up with another piece on people and the importance of communication amongst the legal team.  It seems fitting to complete the trilogy with a piece on process highlighting the importance of the oft mentioned, but essential three-legged stool that is Technology, People, and Process.

In the context of dispute resolution, the first of the three elements to come to the table was “people”. In a pre-electronic -discovery world, “people” would have meant lawyers and practitioners in a law firm culling through numerous lever-arch files with potential evidence to be found in mountains of loose papers.

“Technology” joined the fray when those mountains of evidence became insurmountable, exploding with the addition of both structured and unstructured electronic evidence. Of course, the pace of advances has meant that we are continually learning, adjusting, and determining just how to apply innovative technology, especially in the realm of workflow automation and artificial intelligence (AI).

“Process”, in some ways, is the poor relation to what preceded it. Some entities, such as law firms, have demonstrated excellence in developing and implementing meaningful and powerful processes that harness the benefits of the other two legs — people and technology. However, many have failed to recognise the importance of doing the upfront work to develop well-designed processes and then allowing those processes to be used, assessed, and refined so they can evolve.

For some law firms, the deployment of technology and people has just been allowed to happen. This is most unfortunate. At best, the full power of the combination of technology and people is severely hampered and the true benefits potentially lost or diminished. At worst, inaccurate or incomplete assumptions can be made about what the technology and the people have determined resulting in omissions or misunderstandings. Either way, the entire project (be it an investigation or analysis of potential evidence) is likely to be significantly more inefficient, ineffective, and costly than need be.

Legal Project Management

In recent years many law firms have felt the pressure from clients to better manage costs. In response, many firms saw Legal Project Management (LPM) as the way forward. LPM is indeed a business necessity in today’s legal services market. However, it would be a massive mistake to think that LPM ticks the “process” box. A meaningful approach would include the development, documentation, and implementation of more detailed tailored processes for each of the many workflows.

I see LPM as more of a high level tool to assist with cost budgeting. Further, I would be surprised if even the very best Legal Project Managers fully understands, for example, the ins and outs of the disclosure process. Why would we expect them to understand the need for potentially relevant documents to be looked at several times? Whereas, an e-disclosure expert would of course completely grasp the process of first and second level reviews and the need for issue coding, etc.

An efficient, safe, and cost-effective approach has a higher likelihood of success if LPM is combined with detailed and well-defined processes; that is when harmony can be achieved. To ensure longevity of said strategy it must also be acknowledged that processes require constant evaluation, consideration, testing, time and space for refinement.

Good processes are increasingly important

As I touched on in my earlier articles, the legal profession has seen technology advance at an alarming pace. At the risk of generalising, many lawyers have shifted from deep scepticism and mistrust of technology to perceiving it as a silver bullet solving all problems relating to data and evidence analysis. While I applaud lawyers for coming around and being open to technology, blind acceptance, however, is potentially dangerous.

On the people front, many law firms have created their own in-house managed services or document review practises – often in a lower-cost jurisdiction. Sometimes they use their own law firm-trained personnel, or alternatively they will employ paralegals or qualified temps on a task by task basis. I have heard it said that they have access to the same temp market as the Alternative Legal Service Providers (ALSPs) and perceive they are, therefore, able to compete with them for this type of work (although, experience suggests at a much higher cost point, notwithstanding the charge out rate is likely to be less than law firm standard rates). The vital component missing from each of the above phenomena is process. Until a series of appropriately tried and trusted processes are introduced to the mix, each will attract an unacceptable high level of risk.

Who is best able to develop process?

Process experts will, of course, be present in most established legal practices. Service providers in the eDiscovery space will have built their reputation, tools, service and delivery around established fully-documented processes.

In my view, the masters of process are reputable and experienced ALSPs. For ALSPs, such as Integreon, their calling card and the reason law firms and corporate legal departments trust them with the outsourcing of their work, is their ability to innovate, as well as implementing their tried, trusted, detailed, and documented processes. Process identification, documentation, and implementation is at the very core of the ALSPs existence.

Earlier I mentioned that some law firms have the perception that they can compete with ALSPs in the document review space. The reason I introduced the concept of perception is that the reality is likely they cannot match the ALSP in terms of having rigorous, mature, and established processes as part of its standard service integrated with the actual review. By way of example, ALSPs’ quality control and consistency checks have evolved with the experience and expertise gained from literally thousands of projects involving many millions of documents and data points. Moreover, the introduction of new AI technology, such as predictive coding/Technology Assisted Review/Continuous Active Learning, etc., has resulted in the further evolution of established processes to ensure that reliance on the technology is safe and that relevant checks and balances are in place.

Of course, in addition to the more visible processes, there are a multitude of other equally important processes in play to ensure a robust, secure environment. These detailed, documented processes include security (physical and virtual); controlled access to data; data collection, filtering, categorisation, storage and production; use of various types of technology; use of in-built product functionality; staffing – on-boarding and departures; and many other areas of the business and its services.

In my previous capacity as a purchaser of ALSP services for a law firm, it was often a supplier’s processes that determined whether they would make the cut and be given consideration. Indeed, when I led my firm into the world of outsourced document review for the first time – around 20 years ago – a big part of the due diligence I carried out was literally conducting on site visits with my colleagues from security to observe the processes being carried out in real-time. It was at that point I realised just how advanced the processes were at ALSPs compared to other players in the legal services profession.

As in all walks of life, there are many professional qualifications and certifications that might indicate how competent someone might be in terms of establishing and developing process. For example, Prince2, Six Sigma belts, Lean, etc. However, when assessing process experts, it is also prudent to consider their level of experience and expertise within the specialised area under consideration, and in the wider practice, so as to ensure that their work product is relevant, meaningful, workable and consistent.

Conclusion

Any established documented process is useful in that, at least, one has a base from which to work to improve, enhance or change. But the value of fully thought-out, well designed, tried and trusted processes cannot be under-estimated. It is also worth bearing in mind the need to constantly re-visit, assess and test all processes, no matter if they may seem to have served you well for some considerable time. There is always room for improvement!

In the rush to use technology and people, the one thing that is crucial is to ensure you tie them together with sound processes. Or to put it another way, if you find yourself sitting on the three-legged stool that is technology, people, and process, avoid the embarrassment of tipping over – make sure process is fully present!

About the Author: Vince joined Integreon in June 2017 as an expert legal solutions consultant, with a focus on law firms and corporate legal departments engaging in e-disclosure, e-discovery and document review. Prior to joining Integreon, he was with Magic Circle law firm Allen & Overy for 42 years, where he set up and led their global litigation support / eDiscovery teams. In this role, he assisted key clients from many sectors with the design of innovative, defensible systems, processes and solutions to meet their discovery and document management obligations and introduced the firm to outsourced document review over 10 years ago.