Litigation Support Options for Lawyers and Law Firms

Episode Notes

Transcript

The Legal Toolkit

Litigation Support Options for Lawyers and Law Firms

09/23/2016

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Intro: Welcome to ‘The Legal Toolkit’ bringing you the latest legal trends and business initiatives to help you manage your law firm. Here are your hosts, experienced lawyers, writers, and entrepreneurs, Heidi Alexander and Jared Correia. You’re listening to Legal Talk Network.

Jared Correia: Welcome to another episode of ‘The Legal Toolkit’ on Legal Talk Network. If you are looking for this American life, we are only just a small segment of that. If you are a returning listener welcome back! If you are a first-time listener hopefully you will become a long time listener. And if you are the Rio Olympics Committee, I think I have dysentery.

I’m your host, Jared Correia, and in addition to casting this pod I’m also a Law Practice Management Consultant who evidences a little too much affection for one James Taylor. You can buy my book ‘Twitter in One Hour for Lawyers’ from the American Bar Association, on iTunes, and Amazon, and probably Revolution Books in Honolulu, Hawaii.

Here on ‘The Legal Toolkit’ we provide you each month with a new tool to add to your own legal toolkit so that your practices will become more-and-more like best practices.

In this episode we’re going to talk about options for litigation support. I’d like to start however by thanking our sponsors. Scorpion delivers award-winning law firm web design and online marketing programs to get you more cases. Scorpion has helped thousands of law firms just like yours, attract new cases and grow their practices; for more information visit  HYPERLINK “http://www.scorpionlegal.com/podcast” scorpionlegal.com/podcast.

We would also like to thank our sponsor Amicus Attorney, developers of Legal Practice Management Software. Let Amicus help you run your practice so you can focus on what you do best, practice law. Visit  HYPERLINK “http://www.amicusattorney.com” amicusattorney.com and get started today.

Our guest today is Cash Butler, the founder and CEO of ClariLegal, a vendor management platform for law firms and legal departments. Cash helped to build two early-stage service providers, SteelPoint Technologies and Lextranet that has successful exits. He spent over 14 years of various leadership roles with those providers and their subsequent acquiring companies, Zantaz and Merrill Corporation.

As a stalwart of the litigation services industry Cash has played a pivotal role in some of the most widely publicized lawsuits of the past decade and has experienced the full spectrum of litigation discovery projects.

He has a B.A. in Marketing and Communication from Boston College and an MBA in E-business and Operations from Bentley University. He does however hail from Ann Arbor, Michigan, so go blue; and Cash, welcome to the show my friend.

Cash Butler: Hi Jared. Thanks.

Jared Correia: Great to have you in. So let’s get started. I want to start with sort of a baseline question here, so we’re treating this like a polygraph. At what point should law firms start considering the use of litigation support services? Is the threshold point just, I’m really overwhelmed or is it, hopefully, something before that point?

Cash Butler: Well hopefully it is sometime before that point — law firms, particularly litigation law firms should have a stable of providers that they know and they are comfortable with so that they can execute work in a timely fashion, that said, sometimes that’s not always the easiest thing to do for smaller law firms who may not have a large litigation support team that have the time to be able to do that. So there are some consultants and some other folks that can help guide people to the service providers they need when they need them, that said once again, be as proactive as possible.

Jared Correia: Yes, so it sounds like this solution would be to start as early as possible just getting information on vendors and then before you make your decision having as much information to go on as possible.

Cash Butler: Yeah, knowing what you need, knowing who has those services really will sort the timeline and improve your chances of having a successful interaction with them.

Jared Correia: So let’s talk about corporate legal departments versus law firms. I think most attorneys out there view the inside in-house counsel role as some kind of Holy Grail, they all want to be in-house counsel. So is it more like the Monty Python version in real life, and is the engagement point for outside vendors change in that environment?

Cash Butler: So in the corporate legal departments what really takes on two sorts of facets, two sort of paths. Large corporations that are highly litigious tend to have preferred vendors that they want their law firms to use. On the other hand there are some other corporate legal departments that trust their law firms to make sure that they get the vendors they need to do their work. So it’s really a mix.

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At the end of the day when it really should be as a collaboration where the corporations and the law firms understand whom the vendors are to work on their particular litigation and make a selection based on value, and that could be partly priced, partly service offering, partly some form of specialty item, but at the end of the day it really should be a collaboration, it will take some of the frustration and improve the transparency and the relationship between the corporation and the law firm.

Jared Correia: And clearly, this has a lot to deal with how much litigation a law firm engages, right? If you’ve got a firm that doesn’t handle much litigation this is going to be a wholly different consideration, they’re going to be sort of jumping into the wilderness versus a firm that does this on a regular basis.

Cash Butler: Oh, absolutely a firm that does this on a regular basis tends to have preferred vendors that they use repeatedly and while someone that doesn’t become involved and litigation particularly eDiscovery vendors, it’s a very episodic situation and we may not know who to get — right off the get-go.

Jared Correia: Yeah, so episodically, like Homer’s the Iliad, no, did he write that? Yes, he did, but I digress. So let’s move on and talk a little bit about another topic that relates I think to support services for law firms which is project management. Only recently have law firms and legal department started to adopt project management principles, what to your mind are some of the fixed processes that should be in place for vendor selection among law firms and law departments, and I guess I should start by asking this, are their processes in place or are they still sort of winging it?

Cash Butler: I think most organizations still tend to wing it that said some are more mature in their legal project management practices and vendor selection practices and others. There’s a couple of different processes that are in place. A law firm or a corporate legal department may interview three or four service providers, for example, hosted review providers and go through maybe a six months period where they generated RFP, get their services, get demonstrations, maybe give them some tests to select a particular vendor. On the other hand there are other corporations and law firms who don’t go through that rigor to get to that single provider that’s going to do their work or some length of time it could be a year, it could be three years sometimes it’s preferred to as managed services, it’s really just a preferred vendor that they know and trust and they pretty negotiate its pricing and such.

Jared Correia: Yeah, and I suppose it depends on how long of the litigation we’re looking at as well, some of these things get long in the tooth which I imagine would affect how law firms go about choosing vendors in the first place.

Cash Butler: Sure, absolutely. I am not quite sure what the average length is but I’ve been involved in litigations that have been five, six, seven years from start to finish using a host of different vendors to be able to get to that outcome and also that’s a good point, Jared.

Jared Correia: So let’s talk a little bit about aside from the processes in place who is making the decisions in the first place, and I wonder if there’s some structure there that you’ve seen. Is it managing attorneys who decide on what vendors to use, how involved are they in the process, do they push it to staff or is it like a combination of inertia and just — we’ve always done it this way so we’ll keep using the folks we’ve used because they send us cheesecake every year kind of deal?

Cash Butler: That’s a great question and that’s a real combination of types. There’s the cheesecake factory kind, as you mentioned, it could be a litigation partner, it could be a litigation support manager, it could be a paralegal, it could be the managing partner of a small law firm, it could be the corporation telling the law firm whom to use based on relationship the corporation may have with a vendor or two, it’s all over the place, in fact, I’d love to do a survey of your listeners to figure out, to get to an understanding of what’s the most common way for law firms to select their vendors and who is that person, because it varies from place-to-place, the decision-makers, the influencers, at the end of the day it should be a person who has the end client in mind getting the best value getting three to five bids on work for the vendor, that’s going to be doing their important litigation work.

Jared Correia: I’m the cheesecake factory kind by the way if anybody was interested. So I think we just did sort of an informal survey request here, so folks have input on this that feel free to add that to the comments or contact Cash directly, he will give you his contact information at the end of the show here.

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All right, so let’s move onto an opportunity for you to preach, because you’ve been involved in this stuff for a long time. So why don’t you tell us like, what sort of basic principles do you think law firms and legal departments should be applying to their decisions about using vendors that they’re not doing right now in any consistent way?

Cash Butler: So thanks, it’s been near and dear to my heart for a long, long time, and I am going to preach standardization and not only standardization but being able to make the processes that go into vendor selection and managing projects much more clearly defined and repeatable, measurable, and easy to execute.

Things like getting 3-5 bids for your litigation, even if it’s a small litigation, it’s important that keeps the law firm in compliance but normal corporate purchasing. It also allows the law firm to collaborate with their end client whomever that maybe on the selection of a vendor to do their important legal services work. Things like getting to a standard contract quickly and easily, scoping work in a clear fashion and then bidding on the work, being able to do comparisons.

It’s one of the reasons people don’t go out and get a lot of bids on jobs, it’s a pain in the neck to compare the different — the way people –the different service offerings, the way people describe how they charge, what they do, it’s challenging, it’s a very fragmented non-transparent market.

Jared Correia: Well, I think those are all good suggestions, comments and suggestions in fact which, yeah, I know law firms don’t always apply those necessarily. On that note, let’s take a quick break. We will be right back however before you know it with more from Cash Butler of ClariLegal.

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Jared Correia: Thanks for coming back everybody, but where else did you have to go honestly. We’re continuing our look into vendor management with Cash Butler of ClariLegal.

All right, Cash, let’s talk a little bit now about what law firms and legal departments tend to use for litigation support, because I think part of the problem is, there doesn’t seem to be a significant process in place but part of the issue is that lawyers, especially lawyers who don’t do litigation regularly might not know where to go. I think most folks are aware of the increasing importance of eDiscovery, which has been ongoing for a long time, but what other major categories do you see in litigation support that vendors are covering?

Cash Butler: Oh, they are covering a lot. In fact, I do want to go back to eDiscovery after I mention that.

Jared Correia: Yeah, go for it.

Cash Butler: Court reporting, depositions, transcripts, trial graphics, trial preparation, information governance consulting, meet and confer consulting, there’s a number of different things — expert witness, number of different services that law firms on a regular and repeated basis need to use, they need to outsource to get these experts or services. Back to the eDiscovery –

Jared Correia: Yeah, head up to eDiscovery a little bit, go ahead.

Cash Butler: Yeah, so lots of times it’s smallish to mid-size firms, they may not think that eDiscovery’s service providers are affordable. Years ago, it was $2,000 or $3,000 a gigabyte of information which was just astronomical, you can get that now for certainly under $50 a gigabyte.

So what the importance of the different federal rules of civil procedure and all the different requirements for attorneys to know about eDiscovery and throwing the hook for their vendors, there are very economical great solutions out there that they can use in addition, lots of times some folks would get work from a corporation or an individual that would need eDiscovery and they pass it on to a larger firm that may have some internal capabilities or more experience with that kind of stuff.

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That said, not necessarily needed anymore if you get the right service providers to supplement your legal team. At a real valuable price it can be done and it should be done.

Jared Correia: Well, that sounds good. More options sounds like cheaper options but you just got to know where to look. First, let’s talk a little bit then, I mean, some of those, the covered expert witnesses, eDiscovery I think if attorneys thought about it for a little bit they would think, okay, those would be litigation services that I’m aware of that I would use.

So how about lesser known aspects of litigation that might be outsourced that attorneys might not normally consider or necessarily consider? Can you name some categories there?

Cash Butler: Well, certainly the consultative categories regarding forensic investigations, the various types of information, management, early case assessment situations that can be used, it’s probably more corporate nature.

Jared Correia: Yeah.

Cash Butler: But these things pop up all the time, for instance, I mean I guess this is still under eDiscovery but new social media are popping up every day. It starts off with e-mail, then moves to Twitter, and oh gosh, Pinterest and whatever, all these other things. Well, that’s electronic data that needs to be collected, I mean it could be chat, text, Bloomberg messages.

There are tools out there that allow you to collect that kind of information if needed in a litigation. So as fast as these tools are brought to the market so someone has to quickly fall behind to make sure they have something that can satisfy the legal requirements regarding collection and processing hosting and all that.

Jared Correia: Yeah, so related to investigation, forensics that makes sense. Did you know that there was a version of Pinterest out there for men, which is called gentlement? I feel like I should tell people about this. I don’t know if you’ve heard of that, but that is actually a real thing.

Cash Butler: I’ll take your words for it.

Jared Correia: Maybe I need to get offline a little bit more. So let’s talk a little bit about some consumer pressures that are out there for law firms and law departments. Last episode I did — for ‘The Legal Toolkit’, we talked about consumer behavior in legal and whether a consumer is a client of a law firm or a general counsel who is using outside counsel, there’s always this issue of pushing costs down, controlling costs.

So how important is it in that context for law firms to choose vendors wisely and to keep their own costs down in selecting vendors?

Cash Butler: Oh, I think it’s important across the board for selecting the proper vendor at the right value point from the end client through the law firm with alternative fee arrangements and the constant pressure of price reduction. It’s not just the CFO telling the general counsel to reduce your legal costs and be able to budget forecast properly, which is very difficult in today’s day and age.

It could be a person or a company that doesn’t have just — just don’t have that much money and you need to do this in a very cost-effective manner and it can be done for law firms. If you have a million dollar budget or a $50,000 budget, it doesn’t matter what number you put on it for the legal work do you want 50% of that to go to a vendor as a pass-through cost or would you prefer to have 20% or 30% go through to these outsource vendors and either take the rest of the money for your own margin or maybe share it with the end customer to help get some more repeat business and such, but this price pressure is not going away.

There is lots and lots of — and by the way transparency and improved quality, it’s not just the price the dollar amount of a bit, it’s the way people execute, it’s the reduction of rework, it’s a reduction of ambiguous instruction. There’s efficiency gains that for large litigations may actually be more cost-effective or improve your costs than actual building.

Jared Correia: You also talked about alternative fee arrangements, which is an interesting aside as well because obviously that lawyers and law firms to use alternative fee arrangement is almost necessarily, you have to be more efficient. So we talked a lot about process before, let’s get a little bit real with that and talk about when you’ve selected a vendor, your lawyer, you’ve got your vendor, how do you as an attorney manage the relationship with that vendor to make sure that it goes smoothly on a more personal level? Do you have any advice as far as that’s concerned?

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Cash Butler: Well, the best advice I have is to clearly communicate your need back and forth with your vendor and your legal team, because generally it’s a partner associates, paralegals, et cetera, keeping the communication clean and clear and understood by everyone is a very, very important way to have a good relationship and to end up with a good result while doing this kind of a work.

I was a service provider for many, many years and I would say 90% of the quality incidence, maybe even higher, were a direct result of a miscommunication or misunderstanding of a communication or even just the game at telephone tag or someone sends an email and someone speaks to another person, next thing you know what started out as an Apple on one side of the equation ends up as Mount Everest on the other, it can really go crazy and we see it all the time; so centralized communication that everyone understands having a playbook.

Jared Correia: Yeah, absolutely! And I think lawyers often struggle with figuring out what the best communication platform is for relationships that are not necessarily normal for them or usual like that client relationship and even then they sometimes have some issues.

I guess we have time for one more question, so let’s finally address like the next outsource job that you have as a law firm or a law department. So how can those entities best conduct reviews of vendor engagements after the fact in order to improve those interactions the next time around. So how do you hold the post-mortem and then improve your process moving forward?

Cash Butler: Well, at the start of the engagement you needed to find some results that you want to see, something that’s measurable, for instance the scope of work. You measure your initial scope of work and it’s going to change discovery, it’s all discovery for a reason so your original scope is going to change as you learn more about the situation and things settle. So what could have been a six-month or a year litigation may be a three month depending on what’s going on in the case itself.

So you start off with something measurable, you keep it simple as far as the things that you want to understand better, how are the communications between parties, how do people handle change, how do people handle crisis or tight deadline situations, how did people report so that the information that each team, either the vendor team or the legal team is as close to real-time as possible and not only report, but respond to the report, so that you can really have a drive towards a good outcome, but it’s got to be measurable.

Jared Correia: I think those are really good suggestions and as somebody who has tried to stay as far away from litigation as possible in his legal career, yours truly, I think this has really been enlightening. Sadly that’s going to do it for another episode of ‘The Legal Toolkit’. If you’re feeling nostalgic from my dulcet tones you can check out our entire show archive anytime you want at  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com.

So thanks to Cash Butler of ClariLegal, for spending some time with us to talk about litigation support options for law firms, and now Cash, how can folks find out more information about you or about ClariLegal?

Cash Butler: So, finding more information about me is real simple, it’s  HYPERLINK “www.clarilegal.com%20” www.clarilegal.com. Contacting me is simple again,  HYPERLINK “mailto:[email protected]” [email protected] and these topics that we talked about today are very near and dear to my heart. I started ClariLegal to solve some of these problems of procurement from both the buy and the sell side, so we have a vendor management platform that helps people select vendors and get comparison and multiple bids, understand what the pricing is in the marketplace and then we go further and helping communicating track projects after the engagement has been created. So this is a good topic that I’m very passionate about.

Jared Correia: Cool. Well, there’s your process, folks. Thanks again Cash and thanks to all of you out there for listening, except for you Bill Lambeer, you big baby. Sorry, sorry Cash, I had to. I know you will strike that.

Cash Butler: That’s all right.

Jared Correia: Take care everybody.

Outro: Thanks for listening to ‘Legal Toolkit’, produced by the broadcast professionals at Legal Talk Network. Join Heidi and Jared for their next podcast covering the current business trends for law firms. Subscribe to the RSS feed on  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or in iTunes.

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The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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