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eDiscovery

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 1
 

Your marketing efforts should be aimed at two goals: getting new customers and keeping existing customers.  We’ll start with marketing techniques for getting new customers.  We’ll cover ‘big-picture’ marketing activities – that is, marketing activities aimed at spreading the word about how your department can help litigators in the firm.  And, we’ll talk about one-on-one marketing to individual attorneys and litigation teams. 

‘Big-picture’ Marketing Mechanisms

Here are some marketing techniques and mechanisms that work well in a law firm environment, assuming they are done professionally and with your clients’ needs in mind:

  • Create descriptions of your services.  Describe what you do in writing.  Create simple, professional brochures that you can distribute to litigation department members.  Here are a few tips for creating effective service descriptions:
    • Identify the Problem.  Make sure that each description starts out by identifying the client’s problem or need that the service addresses.
    • Don’t include too much detail.  Attorneys are not likely to read a long document, and — more importantly – if your descriptions raise a few questions, that gives the reader a reason to contact you.
    • Categorize related services together.  This puts your services in a context that will be easier to understand.
  • Offer educational presentations.  There are three keys to making a presentation an effective marketing tool.  They are:
    • You need to get people to come!  Make sure you pick topics that are of interest to your audience and that you do good promotion of it.  One of the best ways to promote an educational presentation is to get buy-in from a senior attorney in the litigation department and have him/her promote it for you.
    • You need to give a good presentation.  Provide useful information.  Use terminology that your audience will know and examples that are relevant to them.  Make sure that the content is well organized.  Stay on topic and on schedule.  Use visuals and provide handouts.  And, make sure that the facility is comfortable (if your audience is not comfortable, they may have a hard time staying focused).
    • You need to do good follow-up.  Your work isn’t done when the presentation is over.  You need to follow-up with attendees.  Solicit feedback after the presentation and find out what other topics are of interest.  Send emails to thank individuals for attending.  Make phone calls to anyone who seemed particularly interested and find out what they are working on and how you might help.

Tomorrow, we’ll cover a few more techniques and mechanisms for getting new customers.  In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration

Last week’s article on Law Technology News summarizes the message put forward by several speakers at the fifth annual Colorado Association of Litigation Support Professionals E-Discovery Summit, held on October 7, 2011. In her article E-Discovery ‘Command’ Culture Must Collapse, Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton – a model that summit speakers agree is “doomed to failure” – and reports on the findings put forward by judges and litigators that the time has come for true collaboration.

The highlights of the summit as far as a collaborative model of eDiscovery include thoughts by U.S. Magistrate Judge Michael Hegarty and Florida attorney William Hamilton, who say the time has come for adversarial, command-style eDiscovery to be replaced by a collaborative model, even with opponents, to result in a more effective discovery process.

Here is a brief summary of their opinions on the future of eDiscovery.

U.S. Magistrate Judge Michael Hegarty: Negotiation and Early Presentation of ESI are Key

Judge Michael Hegarty, of the U.S. District Court (Colorado), believes that minimal court intervention in discovery is best, but that mistakes are often made early on that cause discovery problems with respect to ESI.

  • He remarked on how common it is for litigators to neglect to mention discovery of electronic materials in early conferences, and how “detrimental” that can be to cases.
  • Judge Hegarty noted that a great deal of eDiscovery is unduly complicated because lawyers don’t understand the scope of what it is possible to do with electronic materials. “It’s easy for a party to say, ‘We can’t do that,'” he said, “but it’s hard to imagine that something can’t be done.” He noted the lack of understanding as a key source of friction, and finds that he often has to wade in and order parties to purchase software that will make it possible for them to conduct complete discovery.
  • The bottom line, according to Hegarty, is that the vast majority of cases never go to trial – surprisingly less than one percent of Colorado cases ever see a courtroom – and that’s the way it should be. “We can’t have discovery disputes sit around for months,” he said. It’s important to facilitate a communication process that includes ESI where appropriate in order to settle cases and move them along.

William Hamilton: Support Staff Make Like Possible for Attorneys

William Hamilton is a partner at Quarles and Brady in Tampa, Florida. He is also a professor at the University of Florida’s law school, Levin College, where he teaches “Electronic Discovery and Digital Evidence”. Hamilton is also dean of an online graduate certificate program in eDiscovery at Bryan University, and chair of the advisory board of the Association of Certified E-Discovery Specialists (ACEDS).

  • Hamilton’s speech focused heavily on the role of support staff, the people who “make life possible for attorneys”. He says paralegals and technology staff have a larger role to play in discovery than ever before, but must be careful not to cross over into unauthorized legal practice as they assist litigators.
  • He pointed out a need for change in the very culture of legal practice, where “[h]ierarchy culture disenfranchises everybody”. Bad decision making results from choices made by: “1) habit, 2) reputation, 3) haste, and 4) ‘pure command decisions”, he noted.
  • “Only 10 percent of lawyers ‘get’ e-discovery,” says Hamilton. It’s time for that to change, he says, as a new paradigm for discovery of electronic materials is born.

Learn more about the Colorado Association of Litigation Support Professionals E-Discovery Summit on the Association’s website or read the complete article on Hamilton and Hegarty’s presentations at Law Technology News.

So, what do you think? Is a top-down approach to eDiscovery still viable, or is there a real need for the process to change to a more collaborative and communicative one? Please share any comments you might have or if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: The “Marketing Mind-Set”, Part 3
 

In the last two posts, we’ve talked about some “marketing mind-set” principles that are appropriate for a litigation support / eDiscovery department.  There’s just one more for you to consider:

In all of the marketing that you do, you need to stay focused on selling solutions to your clients’ problems rather than on selling your services.  Don’t promote products and services.  Promote solutions.

Always be thinking and talking about:

  • How you can make your clients more efficient.
  • How you can save your clients money.
  • How you can make your clients’ jobs easier.
  • How you can free up their time so they can focus on substantive work.

Always focus on the problem you can solve, or the task that you can make easier, or the costs that you can cut.  This will get their attention.  This will peak their interest.  This will be the deciding factor in their choice to involve you in a case. 

Selling solutions rather than services should be part of any “big picture” marketing that you do as well as part of one-on-one marketing that you do to individual attorneys and litigation teams in the firm.

The mind-set principles that we’ve covered in the past few posts are critical. Regardless of how many presentations and newsletters and brochures that you do… those activities are likely to fail if you haven’t approached them with these mind-set principles in mind. So, let me recap them here:

  1. Marketing is anything that you do to get a new customer of keep an existing customer.
  2. Whether you realize it or not, you are marketing all the time.  It is not an occasional, planned activity. It is a mode of operation.
  3. Think of your department as a stand-alone company, and think of the litigators in your firm as clients.
  4. Focus on selling solutions to your clients’ problems, not on selling services and products.

Be sure to look for posts in this series next week, when we start discussion of marketing mechanisms for getting new customers. We’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: The “Marketing Mind-Set”, Part 2
 

Last week, we started talking about the right “marketing mind-set” for a litigation support / eDiscovery department.  Here are a couple more mind-set adjustments you may need to make:

  1. Stop thinking of your group as a department within a law firm.  Instead, think of your group as a “stand-alone business” – specifically, a service business.
  2. Stop thinking of the attorneys and paralegals in the firm as your co-workers.  Think of them as your clients.

There’s a really good reason for thinking like this:

It’s appropriate for a litigation support department.

Unlike other departments in the firm, attorneys can choose whether to use your department or not.  Unlike most other departments in the firm, you have competition.  Attorneys can’t go outside the firm to have invoices generated.  They have to use the firm’s accounting department.  They can, however, go outside the firm for litigation support services. They can turn to consultants and litigation support / eDiscovery service and product providers.  You need to take steps to ensure that your department is their first choice.

What does this mean – to operate as a stand alone business — in practice?  There are three key things you need to do:

  1. Stay focused on promoting your offerings to litigators in the firm – both litigators who are using your services and litigators who are not yet using your department.
  2. Make it very easy and painless for your clients to work with you.
  3. Stay focused on delivering premier customer service to your clients.

Over the next few weeks, I’m going to give you tips and suggestions in each of these areas.

We’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: Service Providers Unite!

While mergers and acquisitions of major eDiscovery providers (such as Symantec’s acquisition of Clearwell and HP’s acquisition of Autonomy) dominate the headlines, the majority of eDiscovery providers are actually small to midsized companies that provide a full range of services from coast to coast.  To enable the small/midsized providers to compete with the eDiscovery “bohemoths” of the world, Jerry Correia and Greg Bayless formed the Legal Service Providers Association (LSPA).

The LSPA’s mission is to help the small/midsized legal service providers grow and thrive by providing access to increased sales and marketing opportunities, training and certification programs, supplier discounts, and human resources support. The idea is that “strength in numbers” can enable LSPA’s members to compete on an equal footing with the “big boys”.

Jerry and Greg have 38 years experience in the legal services industry, managing companies providing services to law firms and corporate legal departments.  They’ve spent the last 15 years to running companies focused on helping vendors in the legal services industry improve and grow by providing training, consulting, staffing and national referral services.  They started the LSPA in January of this year with the belief that small to midsized companies are the best suited for and the most dedicated to providing the service excellence clients have come to expect and demand, but few providers can develop and negotiate the kinds of programs and discounts available to Fortune 500 corporations by themselves.  Through membership in the LSPA, members can benefit from savings including up to 60% from suppliers such as Staples or UPS, which not only benefits the providers, but also their clients where savings can be passed along.

Since announcing its charter member program back in February, the LSPA has added 40 charter members to date.  While all members of the LSPA enjoy benefits such as training and supplier credits and discounts, and sales/marketing and technical support, charter member companies receive additional exposure and branding opportunities through premium placements on their website, emails, press releases and newsletters.

Part of LSPA’s education program includes webinars available to its members.  In the past two months, LSPA has conducted webinars related to understanding the risks associated with collecting ESI (conducted by Jason Park, owner of MD5 Group) and top 10 eDiscovery trends and predictions (conducted by Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz, and Ronald J. Hedges, former United States Magistrate Judge).

Want to learn more?  Tomorrow, the LSPA is conducting an Informational and Membership Benefits webinar where they will discuss the vision for the LSPA, describe member benefits and discuss how to join the organization.  To register for the webinar, click here.

So, what do you think?  Do you use small or medium providers for eDiscovery services?  Does the LSPA make those providers better?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: CloudNine Discovery is a charter member of the LSPA.

eDiscovery Searching: A Great Example of Why Search Results Need to Be Tested
 

In my efforts to stay abreast of current developments in eDiscovery (and also to identify great blog post ideas!), I subscribe to and read a number of different sources for information.  That includes some of the “web crawling” services that identify articles, press releases and other publications such as the Pinhawk Law Technology Daily Digest, which is one of my favorite resources and always has interesting stories to read.  I also have a Google Alert set up to deliver stories on “e-Discovery” via a daily email.

So, I got a chuckle out of one of the stories that both sources (and probably others, as well) highlighted last week:

A+E, Discovery get ready to roll out

The story is about two of the biggest players in the global TV, A+E Networks and Discovery Networks, rolling out their channels into India and Latin America respectively.  The article proceeds to discuss the challenges of rolling out these channels into markets with various requirements and several languages and dialects included in those markets.

This story has nothing to do with eDiscovery.

Why did it wind up in the list of eDiscovery stories returned by these two services?  Because the story title “A+E, Discovery get ready to roll out” retrieved a hit on “e-Discovery”.  Many search engines are generally set to ignore punctuation when searching, so a search for “e-Discovery” actually looks like a search for “e Discovery” to a search engine (keep in mind searches are also usually case insensitive).  So, a document with a title of “A+E, Discovery get ready to roll out” could actually be viewed by a search engine as “a e discovery get ready to roll out”, causing the document to be considered a “hit” for “e discovery”.

This is just one example why search results can retrieve unexpected results.  And, why a defensible search process (such as the “STARR” approach outlined here) that involves testing and refining searches is vital to maximizing your search recall and precision.

BTW, this can happen to any search engine, so it’s not a reflection on either Pinhawk or Google.  Both are excellent resources that can occasionally retrieve non relevant results, just like any other “web crawling” service.

So, what do you think?  Did you see this story crop up in the eDiscovery listings?  Have you encountered similar examples of search anomalies?  Please share any comments you might have or if you’d like to know more about a particular topic.

State eDiscovery Rules: Florida Moves to Adopt New Civil Procedure Rules on eDiscovery
 

Florida is currently preparing to adopt a set of changes to its Rules of Civil Procedure with regard to discovery of ESI, closely founded on the changes made to the Federal Rules in 2006. Based on the recommendation of the Florida Civil Rules Electronic Discovery Subcommittee, the full Rules Committee voted on implementing changes now rather than waiting until 2013 when these rules would normally be considered.

Florida eDiscovery Rules to Mimic Federal Rules – Mostly

On July 29, the Board of Governors of the Florida Bar accepted the plan to adopt changes as soon as this fall – changes that essentially copy those made to the Federal Rules except for the elimination of the Federal Rule 26(f) "meet and confer" conference, which will not be considered a mandatory part of discovery of ESI by Florida courts.

However, since this type of early conference is required by circuit courts in Miami, Orland and Tampa – three of Florida's largest judicial areas – that should minimize the risk that issues of major importance regarding eDiscovery will be overlooked, at least in many major business cases. What's more, Florida has a special rule that mandates early conferences in cases that are considered "complex".

New Florida Rules

The new rules are expected to have a significant positive effect on Florida courts, for several reasons:

  • The near-duplication of current federal rules for eDiscovery provides Florida courts with much-needed guidance on the role and implications of ESI in discovery.
  • It creates consistency between federal and state rules, important where national corporations may be involved in cases in Florida.
  • It also enables Florida courts to rely on federal precedent, preventing Florida lawyers from the need to "reinvent the wheel," and allowing them to draw on federal decisions and judgments.
  • Finally, the similarities between the new Florida rules and existing federal rules will prevent plaintiffs from "shopping" courts depending on the rules and regulations assigned to eDiscovery.

With the improvement in clarity of eDiscovery procedures and the strong connection between state and federal rules, these amendments to the Florida Rules of Civil Procedure seem poised to make discovery proceedings simpler and easier in the sunshine state.

So, what do you think? Are the changes to Florida's eDiscovery procedures positive? Is the omission of something like Federal Rule 26(f) a serious problem, or is it insignificant? Please share any comments you might have or if you'd like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: The “Marketing Mind-Set”
 

As we discussed yesterday, successful marketing of a litigation support / eDiscovery department within a law firm is a significant “key to success” to the success of such a department.  For marketing efforts to be successful in a law firm, they have to be approached with the right “mind-set”.  This may require making some adjustments to how litigation support / eDiscovery department members think about marketing, and perhaps even some adjustments to how the department operates.

As a first step, it’s important that everyone in the department has a common understanding of what “marketing is”.  I looked it up in the New Oxford American dictionary, and here’s their definition:

“The action or business or promoting and selling products or services, including market research and advertising”.

This definition is accurate, but I’m not crazy about it.  I don’t think it makes a strong enough point.  I like this, bare-boned and “to the point” definition better:

Marketing is anything that you do get a new customer or to keep an existing customer.

Yes, marketing includes advertising and market research.  Successful marketing also includes lots of little things that you do everyday.  It even includes all the casual conversations you have people in your firm.  So, here’s a “mind-set adjustment you may need to make:

Mind-Set Principle #1:  Don’t think of marketing as an occasional, planned activity.  Think of it as a mode of operation.

Whether you realize it or not, when you are on the job, you are marketing.  Every time you speak with someone in the firm, you are marketing.  Every time you send an email to someone in the firm, you are marketing.  Every time you have someone in your office and they look around and see how organized or disorganized you are, you are marketing.  And this goes for everyone in the department. 

Stay tuned for next week’s posts in this series, where we’ll cover a few more marketing mind-set principles.

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Introduction
 

You may have seen the movie “Field of Dreams”.  In that film, Ray – the main character – builds a baseball field on his farm in Iowa.  Famous, deceased baseball players like Shoeless Joe Jackson appear to play ball on the field, and fans travel from all over to watch the ball games.  Throughout the movie, a voice tells Ray “If you build it, they will come”.

If you look this film up in a movie directory, it’s categorized as a “fantasy”.  And this statement – “If you build it, they will come” – is a fantasy too.  This just doesn’t work in real life.  We have to do more than build something:

  • We have to let people know about it,
  • We have to convince people that it’s something that want or something that they need, and
  • We need to continuously remind people about it.

This is certainly the case for law firm litigation support / eDiscovery departments.  These departments offer invaluable services to law firm litigators.  They make litigators more effective and more efficient.  All too often though, these departments are underutilized because lawyers don’t recognize opportunities to use the services.  I’ve worked with some departments that have been hugely successful in providing services, and with others that have been less so.  There are several “keys to success”, but one very significant, common key I’ve seen in each successful department has been good marketing within the firm.

In this blog series (which will run over the next several weeks), we’re going to cover marketing techniques that work in a law firm.  Specifically, we’ll cover:

  • The Marketing Mind-Set,
  • Getting New Customers, and
  • Keeping Existing Customers.

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: Opinions…Everybody Has One
 

With the number of presidential candidacy polls already being conducted with over a year(!) before the 2012 presidential election, it’s no surprise that just about everyone is willing to express an opinion on just about anything.  With that in mind, one of the best eDiscovery blogs out there, Ralph Losey’s e-Discovery Team blog, is currently conducting a confidential poll of its readers related to various eDiscovery topics.

Using Polldaddy.com, Ralph asks questions related to various eDiscovery topics, including confidentiality orders, privacy rights, eDiscovery certification and new Federal Rules for eDiscovery.  He even asks a polling question of his readers as to whether they like these polls!  Amazingly, 13 people (10.48%) so far have responded ‘no’ to that question, which makes me wonder why they would take the time to respond when they don’t like polls?  Hmmm…  😉

Each of the polling questions not only provides a button to vote, but also provides a link to view results.  If there’s an end date to the poll at some point, Ralph doesn’t indicate one, so it appears that the ‘polls’ are open indefinitely.  The questions each have ‘yes’ and ‘no’ selections, along with an ‘other’ (with space to put in a comment and usually a fourth qualifying option (for example, question #2 below provides a choice for ‘Most of the time, but not always’).

I don’t want to “steal anyone’s thunder” and report current results, but you can use the link above to check out current results for each of the questions.  I will say that it appears that most of the questions have at least 100 responses so far, with some having a clear majority opinion and others being much more evenly distributed in responses.  Here are the questions Ralph asks in his blog post (excepting the aforementioned question about liking polls):

  1. Should courts routinely enter umbrella confidentiality protective orders during the discovery phase of the case?
  2. Should the public have a right to see all information filed with a court?
  3. Should all information accepted into evidence in a trial be disclosed to the public?
  4. Should Plaintiffs in civil suits have a right to protect from public disclosure any of their confidential information that is directly relevant to their case?
  5. Should Defendants in civil suits have a right to protect from public disclosure their confidential information that is directly relevant to the case?
  6. Should corporations have the same privacy rights as individuals?
  7. Is lack of privacy a problem in the United States?
  8. Are you concerned about your employer's right to read your email?
  9. Would you like stronger U.S. privacy laws where no one can read your email and other personal communications without your permission? (multiple answers allowed)
  10. Would you like to see privacy protection on the Internet strengthened?
  11. Do you agree with Patrick Oot? (and his criticism of eDiscovery certification programs)
  12. Do you think there is a need for certification of expertise in the field of electronic discovery?*
  13. Do you think there is a need for extensive training programs in e-discovery law?
  14. Do we need to amend the Federal Rules of Civil Procedure again soon to address e-discovery issues?
  15. Do we need to amend the FRCP to add one or more new rules on preservation?
  16. Should the rules be amended to limit the scope of relevancy in discovery?

*I have a ‘bone to pick’ with one of the potential responses to question 12 (Yes, but only State Bar Associations should do it) as it implies that the only people who need certification are attorneys and other legal practitioners, when technologists and consultants need it too.

I encourage you to check out the post, vote and view current results.  Even if you don’t like polls.  😉

So, what do you think?  Can we learn anything from polls like this?  Please share any comments you might have or if you’d like to know more about a particular topic.