This is a continuation of my interview on ESI Bytes by Karl Schieneman. The first part of the interview discussed the upcoming première of my video with Jason Baron at Legal Tech on February 3rd, and e-discovery specialization. It is found just below this blog, and if you have not already read it, you should start there. This second half of the interview continues the discussion of specialization and branches off into a host of other vaguely related topics.
SCHIENEMAN: Let’s talk a little bit about the e‑discovery process. It becomes clear you’ve got to have some knowledge right in the beginning to make this thing work. Because current thinking says having a good meet and confer and cooperating with the other side at the beginning is really critical to reducing e‑discovery issues, or at least dealing with them. How do you ensure this happens without e‑discovery expertise on your team? Do you have any thoughts on that?
LOSEY: Well, it’s like, you know, mandating a rule that people speak French to each other at the beginning of a case. If they don’t already speak French, it’s just not happening. It’s barely happening that they’re having 26(f) conferences at all, but to have a rule that says that during the conference, you will discuss French literature in French. You have to bring in a person that speaks French to do that, a specialist. Most clients are unwilling to pay for that, most lawyers are unwilling to take the time to learn French. They’re fine with English, thank you very much. And so as a consequence, the statistics show that even in the federal system, it’s about 30% only of the 26(f) conferences that electronic discovery is even mentioned. And even then, it might be mentioned and they may say “Let’s not do any e‑discovery, at least not at first. Let’s try to do the case without it, if we can.”
SCHIENEMAN: Yeah, so I mean, just the understanding that if you’ve got these issues, you’ve got to cooperate, which is foreign to most litigators. I mean, it’s not a traditional tool used by many litigators who are adversarial often times.
LOSEY: Well, I’m more optimistic about cooperation. I would disagree a little bit with your statement on that. If lawyers are confident and comfortable in their knowledge, they can cooperate. They know that is needed, and that the alternative is going to potentially endanger their case and be detrimental to their client. Most lawyers understand that whether the deposition is at 3:00 or 4:00, for instance, doesn’t really make any difference and they will cooperate. You know, what goes around, comes around. They will cooperate on simple technical matters. Any lawyer during a trial is not going to object to a leading question at the beginning of asking questions of a witness. This is where you always ask leading questions just to make the witness more comfortable, like isn’t it true you live in Florida, things like that. Technically you could object, but if you did, you know what? The judge would look at you like you were a complete idiot because it is common protocol and an acceptable professionalism to not make such objections, but to cooperate. And why is that? It’s to move things along. It’s to facilitate the process. And that’s in your client’s best interest. And lawyers do cooperate on small matters that they understand.
So, I’m going to the defense of lawyers and cooperation. It is ingrained in every trial lawyer, every litigation lawyer, to have a certain bit of cooperation. On the other hand, it’s also ingrained to fight for your client’s rights and not to give up on things where you may potentially have an advantage. The problem lies in that a lot of trial lawyers, perhaps most, are not trained enough in e‑discovery to know what is a merely technical matter that doesn’t matter if you stipulate to, and what is a critical thing that you need to fight for. Since they don’t know where the line is and since they’re afraid of these ambiguous gray lines, they’re afraid of accidentally prejudicing their own client by cooperation. It’s not the fear of cooperation, it’s the fear of screwing up and prejudicing their client that I think drives it. And so the solution is knowledge. Once for instance they get it, that metadata is nothing to be afraid of, and that you should stipulate to that, and it’s not damaging your clients, then you’re going to get rid of a good third of the sanction cases you have going on right now. In these cases lawyers don’t cooperate because they don’t know enough to stipulate. They don’t know enough to know what really is in their client’s best interest, which is to focus on the real disputes, not on the minor little technical matters.
SCHIENEMAN: One of the other things that makes this area challenging to work in is the role of new technology and new tools. You know, litigators I think oftentimes like bright line rules and dislike ambiguous changing areas because we’re paid to give the right advice. And that certainly makes it harder. But the landscape in e‑discovery always seems to be changing. One example, I did a recent show on backup tapes, and for a number of years after the Coleman case, Morgan Stanley case, everyone always thought, oh, my god, you have to avoid backup tapes, you know, draw the line there. But the technology is changing rapidly in this area, prices have come down and sometimes it might make the most sense to look at your backup tapes in an old case. And so it’s hard, you know, with technology changes, keeping your playbook current is one of the other issues that I see out there.
LOSEY: Well, it is. It’s a problem. But you know trial lawyers are really good at learning stuff because – the generalists anyway. That’s what they do. Each case they learn some new business, they learn some new subject matter, they learn a new area of the law. Most really good trial lawyers are also good at learning. So I’m optimistic that they can learn it if they’re inclined to do so and if they’re given a chance to learn it, a way to learn it. And that’s why I spend so much time writing and stuff is to give them that chance. Because I’m convinced once they learn it, they’ll get beyond the knee-jerk reaction of I don’t know, so I’m going to fight over everything. Then they will cooperate, and cooperation is to me one of the legs on the three-legged chair that e‑discovery needs to stand on.
SCHIENEMAN: Most lawyers are generalists, okay. In fact, the vast, vast majority of them are. What role do you see them playing to be effective in electronic discovery?
LOSEY: I see them playing a role, first of all, of getting beyond the fear of saying they don’t know. A lawyer needs to be willing to admit and say I don’t know and then to ask questions when an IT person speaks a language they don’t understand – starts speaking French at them – and say wait a minute, I don’t know. That’s the first step. It’s like the Zen student has to have an empty glass there for the information to come in. Once that happens, real learning can begin.
Any IT consultant will tell you that a lot of people just nod and say yes, and they, the consultants, know perfectly well that they don’t understand what they’re saying. A good consultant will come in and will spell it out in proper language and won’t allow a person just to nod and say yes when they know they don’t get it.
The trial lawyers have got to get an attitude where they accept that discovery is something that they have to learn again. Now I understand where they’re coming from. After all, they learned discovery in their first year of practice. Most trial lawyers think of discovery as pretty simple, as something you give a young associate to do. How hard are interrogatories? Hey, after the first 100 depositions, they’re all pretty easy. You can do a deposition. You know, request for admissions. They’re simple. Request for productions. Oh, yeah, I’ve done that a million times. Well, what they don’t know is that last thing, request for production, suddenly – and I mean just over the last 10 years or so – has become a nightmare of complexity. It is not something you can just give to the associates or just gloss over. It’s something that you’re either going to have to take the time to really learn it, or you’re going to have to bring in somebody else that does, a specialist, and learn how to work with that specialist.
General trial counsel need to learn how to be a kind of a client. I work with a lot of trial lawyers that don’t really want to know e‑discovery. That’s fine. All they know is that they know how to get me on the phone. They know how to be the client and I am then serving the trial counsel, they’re my client. We both serve another client, if you will, but that’s the role of the specialist, to work with and support the general trial counsel. It’s a brand new role, never happened before. There were never discovery specialists before in the 30 years I’ve been practicing law. This is all new stuff to have that. So it’s a matter of feeling out what the roles are, how you do that, what are the rules of the game. A lot of times part of my thing is learning when to step back because I was a trial lawyer for a long time. But I don’t step on turf any more. I just worry about the e‑discovery and then if litigation strategy comes up, and people ask me, well then I’ll give them the benefit of my experience in that as well. And honestly that does make you more effective as an e‑discovery specialist, if you’ve had a life in general litigation. You can see the big picture that the IT-only guys will never understand. They have never done trial work. They’re never really going to be able to give the same kind of practical, common sense, good advice, that somebody who’s been in the courtroom can give you.
SCHIENEMAN: Well, let’s talk about the people that – of the generalists that aren’t learning and are ignoring the issue maybe. And there have been many statistics given about the opt-out issue in electronic discovery. We both have seen that 30% number of cases where the 26(f) doesn’t even deal with e‑discovery. I did a podcast with George Socha where he had some statistics, and I think he might have cited where that study was in that podcast – but I also anecdotally hear that same concern from judges who are sometimes shocked – and I remember talking to prominent judge here in Western Pennsylvania who basically asked the parties, are you really sure you’re not addressing e‑discovery at this point? And so from your perspective, what are the biggest risks you see from not addressing e‑discovery up front in effectively running a case?
LOSEY: The worst time to discuss e‑discovery is at the end of the case. That’s why the rules are written the way they are. They’re written to try to force federal practitioners to address it at the beginning of a case, rather than at the end. That’s why it’s on the list of topics in 26(f), that’s why in my opinion courts ought to start having mandatory 16(b) hearings, which most federal courts do not, you know, because it’s a lot of work and I don’t blame them. They’re dockets are too busy. But you know what? If the judges would do that, would always schedule a 16(b) hearing to discuss your 26(f) conference and your report, your case management report, then the judge could specifically ask them: What about e‑discovery? Where is that? What have you talked about on that? That’s what it’s going to take to force lawyers to do what they don’t want to do, most lawyers, and that is discuss e‑discovery. They don’t want to do it because, like I said, they don’t know how to speak French and they don’t really want to, they haven’t had a good course offered to them where they can learn it. And also there aren’t enough e‑discovery specialists out there for them to turn to. There’s only really a few of us that do it full time. When that happens, when the judges use their power and hold the lawyers feet to the fire with a 16(b) hearing, and put the questions to them, that’s going to force lawyers to go ahead and do it up front like the rules require.
The alternative is they will opt out. And that’s what they’re doing, continue to do, have always done, and are continuing to do. And you know what? If it’s done with informed consent of the clients, there’s nothing wrong with that. If it’s done with informed consent of the clients, you know, you can decide not to do any discovery at all, right? There’s nothing that requires you to do it. Usually, one side or the other’s going to want to actually do some discovery, though. And if they want to do discovery that includes the writings, then they have entered the world of e‑discovery. My thing is informed consent with the client where you talk to them about it. The reason the clients are agreeing with opt out, if they’re being asked, is because of the dollars. They’re being told, well, if we do e‑discovery, it will cost a million dollars and this case is only worth two million dollars. So the client says, well, you can’t quote exactly what the client says because there’d be certain profanities in that. But the bottom line is, the client’s reaction is no, let’s do the best we can without it.
The solution to that is we’ve got to make e‑discovery affordable, which is, you know, a whole other conversation. But the bottom line as to how you make e‑discovery affordable is the same answer you have to most e‑discovery questions, and that is, you educate the practitioners involved so that they know what they’re doing, so that can do e‑discovery in an affordable way. The affordability factor is e‑discovery 2.0 if you will, the second paradigm of e‑discovery that I’ve been working on for years and other people have too. And that is how to do bottom line based discovery instead of the original way e‑discovery was being done, and frankly is still being done by some experts, where you just collect everything and throw it all up on a review platform and review it all and damned with the cost. So it all comes back to education in my stilted view of the informed consumer, which is also what generalists are. They’ve become a consumer, not only of the services of specialist attorneys, but also of vendors. If they’re an informed consumer, they are going to end up doing it cheaper than if they’re an uninformed consumer with a blank check.
SCHIENEMAN: There are a number of judicial opinions out there. U.S. v. O’Keefe, Judge Facciola’s opinion where he talked about the complexity of search and topics beyond the ken of laymen. Then you’ve got the more recent case in 2009, the In Magid et al v. B.L. Development Corp. from Mississippi where the judge, Magistrate Judge Allen Alexander, imposed an electronic discovery expert on defendants. So I guess what we’ve been saying, is there is a strong recognition that sometimes you have to look to experts. Sometimes the judge will tell you to look to experts. How do you think you find experts? I mean what’s your advice for finding these specialists for generalists?
LOSEY: Well, that’s a good question.
SCHIENEMAN: There are only two of us on the podcast, so –
LOSEY: Yes. It’s not easy because it’s not like there is a list of people with LLM’s in electronic discovery. It’s also not as if there aren’t a lot of incredible claims being made out there by a lot of vendors. I mean, I just had a vendor call the other day that was funny. They cold-call lawyers – they just do a website search to find out what firms have an e‑discovery department or something on the website. And then they’ll get the names, usually one or two chairs of the department, and then they’ll cold-call them. I’m not going to name names here, but this person had no idea who I was, I was just another lawyer on a list. And he started with his spiel. Now, I imagine that half the time they get interrupted and they never finish that first spiel. But I’m just one of these curious people. I like to see what the vendors are saying. And this one, by the way, was not just some small local vendor. This was a big national vendor. What was their pitch? My, god, it was shocking. The gross exaggerations, the wild claims that are being made, and you know, to me it’s just shocking. We’ve got a wild west out there.
EDRM is working on a code of ethics for vendors and some day they’ll get there. I saw that the latest Sedona webinar coming up on ethics is going to include a discussion about vendors crossing the line and doing the unauthorized practice of law. That’s a huge issue of all non‑law firm consultants, where they have lawyers on staff, but they allegedly don’t give legal advice. This is very hard if you’re working for a vendor and you’re a lawyer, not to give legal advice. But this is another problem that we’re facing in this kind of wild west, still early stage of new legal services that we’re entering in.
So bottom line, how do you find an expert? Right now it’s very difficult. After my 3½ years of just doing e‑discovery, I’ve kind of figured out who the best are in different areas, who’s good and who’s not. But could I do it by just going online and looking at all the wild claims? No, probably not. So it’s pretty much word of mouth. You know, George Socha said he gave up ranking companies. They’re not going to do that any more, which is probably a good thing. Maybe Gartner’s going to move into the field. They already are starting some ranking. But that’s more ranking of software, that’s not ranking of actual outside experts. So, the short answer to your question of how do you go about finding the right experts, is by word of mouth reputation, checking people out. Just the old fashioned way, like you would go to find any expert that you were searching for. You know, how would you find a good economist, things like that. It’s a difficult process and you have to do your homework and buyer beware. …
SCHIENEMAN: So then, the decision to charge ahead, after you get your specialist on board, to come up with a game plan, it’s probably at that point. I mean, the specialist you can’t – there aren’t enough of them, so at some point, you know, lawyers got to do what they normally do. So, I imagine that there has to be some good communication there as well.
LOSEY: Yeah. And with that we get back to the little analogy I’m using here of speaking French. Let’s say the specialist speaks French, or we used to call it computerese. You still hear that term much any more, Karl?
SCHIENEMAN: I have to tell you something funny. I was in a meeting in another city a couple days ago and was told by the lawyer that I was their favorite technology expert they had ever met. And I straddle both sides. I mean – but if you come at it too much in French, you lose people. I see exactly where you’re going.
LOSEY: Yeah. We used to call it computerese and I used to – you know, back in the eighties that would get a big laugh – but anyway, it’s true it’s gotten even worse because there’s more language, the systems are more complicated. So communication is a critical thing. I mean, getting back to my three-legged stool, the one leg is cooperation, but the other leg is having a functional interdisciplinary e‑discovery team. That’s why I call my blog e‑discovery team. Oh, by the way, did you notice I now have my blog with the domain name e‑discoveryteam.com so you don’t have to remember ralphlosey.wordpress, etc. Something I did over Christmas. So, that is critical to work with lawyers and IT people, working together, both speaking this kind of Creole-French-English combination if you will. You teach the English speakers, the regular lawyers, a little bit of tech talk so that they can understand and use the word deduplicate and then even go on and learn vertical and horizontal deduplication and know what the heck they’re talking about. That’s good. These is some basic terminology, basic French, that the English lawyer needs to learn and guys like us mustn’t forget our English. We need to put things into everyday language as well. We need to speak the King’s English or the judge’s English so that we don’t come across as people who are incomprehensible and thus worthless. I mean, language is the key to make a inter-disciplinary team work.
And before I forget, too, lest I be accused of not finishing my thought on the three-legged stool, the third leg is the one thing you’ve already been mentioning, but I’ll put a label on it, and that is using technology and the new methods that are being developed that take advantage of modeling, things like statistics and quality control. The other great paper that Jason R. Baron was the editor of is the Sedona paper on quality (The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process (2009). (See my prior blog: Sedona on Quality: a Must-Read Commentary). These are the three things that we need to do in e‑discovery (and I’ll be coming out with a video blog on that soon): cooperation, working with teams, and using new technologies and metrics.
SCHIENEMAN: The one area I want to sort of wrap up on in this space is – and you touched about on it with the wild claims that you run into from others about, you know, maybe the tools they have or the team they have in place and how easy it is. I have been seeing a lot of buzz and chatter about coming up with standards for a certified e‑discovery expert. Do you think we’re ready for that? Do you think that’s a solution?
LOSEY: Well, we’ve got to be careful what we’re talking about here. Coming up with standards is something a little different. Sedona has been working hard on standards and I think they’re doing a terrific job on it in the sense of best practices. I work hard on that. A lot of people work hard on that to try to have best practices. That’s different, I think, than this thing coming – this other moving coming out of the paralegal organization about certification. Certification without education is, in my view, not the way to go. The key thing, the critical thing, is education. That’s why I devote every Wednesday to go up to Gainesville and teach and so do a lot of other people who are now focusing on the academic world. And we’re all doing Legal Tech, we’re doing, you know, all kinds of CLE activities. E‑discovery has a tremendously committed group of lawyers who are focused on education and really it’s pretty impressive how many people donate and volunteer their time to do that. That’s, I think, the right way to go about it, to have education and bring up the quality of education. Not all CLE’s are created equal, as you know. Some CLE’s are just sales talk and the lawyers I think are catching on to that and they don’t want a sales talk CLE, they want real information.
But the kind of valid thing behind this whole certification movement is, well, how do you know? How do you know if this is real talk? How do you know if this guy really knows what he’s talking about? This is not unique to e‑discovery. This happens every time there’s a new area of law. I mean, I’ve seen it often through the course of my 30 year career. There didn’t used to be local bar certification of specialists when I started practicing. There weren’t any in Florida. I don’t know if there were in New York, Pennsylvania or elsewhere. But in the 80s in Florida it was just starting out. So in the course of my career the Florida Bar has, I don’t know, a dozen or more certifications as a specialist. If you’re not certified in that area, you’re not allowed to call yourself a specialist. I am not allowed to call myself a e‑discovery specialist. What I am allowed to say is that I concentrate my time in e‑discovery and just do e‑discovery. That’s the truth. But I cannot make a claim that I am a specialist. Why? Because there is no certifying body of The Florida Bar or anyplace else that will certify me as a specialist. Now you can draw your own conclusions about me by reading my three books, blah, blah, blah, but I am not making any claims in print or advertising that I am a specialist. This is how the Bar polices and controls this whole situation, the wild west situation, of who’s really got the skills and who doesn’t. So in that sense, this drive for certification has a lot of common sense behind it when we have so many people and so many vendors, but we’re not going to have vendor certification. The only thing we’re really going to have are professional certifications. Then the professionals will help you to get the right vendors and sort things out.
The problem with the Bars doing certification is that we’re still a long ways off from that. It took – I watched healthcare for instance – it took a good 20 years for them to come up with a healthcare certification. I remember one of my partners was doing that and they created the test and they finally did it. The funny thing was he helped write the test and then he didn’t pass it the first time he took it. And he’s a great healthcare lawyer. I mean, a lot of it is a testing game, too. Some people are good at testing. So it has to be meaningful certification and that either means it’s going to be done by the state bar associations, which I think it’s still a long way off, or it has to be done after completing an educational program. We’re having trouble getting rules, much less certifications from state Bars, so I think it’s going to have to come from someplace else. But it’s going to have to come out of meaningful education. I know I’m starting to sound like a broken record, but certification has to come out of completion of some kind of educational program, kind of like a diploma. To just create some sort of written test and have people take it, is not enough to be reliable, no matter who’s on the board. I think you have to show that they put in the time.
There’s an interesting little discussion going on in my blog about the amount of time needed to study e-discovery. I don’t know if you’ve seen it, but somebody left a comment regarding my statement that for a student to do really well in e-discovery, they will have to spend in the course of a semester 200, as much as 250 hours of study. If they put in that kind of time, if anybody does, 200, 250 hours, they’re going to have a good basic understanding of the field. But then I also went on to quote Malcolm Gladwell in his latest book, Outliers about 2,000 hours – and, by the way, you might want to read that book before New York Legal Tech because Malcolm is going to be one of the keynote speakers. I’m looking forward to hearing him because he’s one of my favorite authors and his book Outliers is fabulous and it includes a discussion about an attorney outlier – people that really achieve on the highest levels, which I consider, you know, either – I don’t like the fancy word, they’re a genius, but I like more the phrase a complete master of the subject. That’s from the old medieval tradition of being a master with apprentices, like Leonardo da Vinci was a master artist. If you’re a master craftsman and you’re a master of something as complicated as e‑discovery, or for that matter something as complicated as securities transactions or, you know, hostile takeovers, I mean, who knows what. You name it, there’s thousands, millions of very complicated fields. To attain that level of mastery according to Malcolm Gladwell, studies have shown that it takes about 10,000 hours. The Beatles got to be at the top, super good, better than everybody else, because they went to Berlin and they put in about 10,000 hours instead of partying in Liverpool. And that’s why when they came back from Germany, they were like, oh my god, this group is so great. That’s how they did it. That’s one of the many studies that Malcolm Gladwell offers. You want to be the best – you want to be a master of e‑discovery, then you’ve got to pay your dues and spend the time. There’s no shortcut. There’s no I’m so smart, I can do it.
So, to certify without also training is not the way to go. We need to offer training opportunities and education opportunities and then you just need to get out there and do it. My last 3½ years of limiting my practice to e-discovery has taught me by doing it, and doing it, and doing it – that allowed me to learn so much more than before. You’ve got to read and study, but then you also have got to get your hands dirty, work on these matters and a variety of different matters, and you can learn by doing, which honestly, that’s the way lawyers always learn. You know, they don’t call it legal practice for nothing.
SCHIENEMAN: Well, this has been obviously an issue that’s not going to go away quickly. It’s going to take some time to sort this out. But I appreciate your insights to this. Do you have any final predictions on how the specialization issue is going to play out in the coming year or decade?
LOSEY: I think the technology lawyer, information technology lawyer, electronic records lawyer is here to stay. We may stop calling ourselves e‑discovery specialists or lawyers because it’s like when a word gets used too much, it starts losing its meaning. But this function of having certain lawyers that try to stay current with the latest curve of technology is here to stay. That is because technology is not going to stagnate any time soon. We have lived in a world of constant change and that will continue throughout the rest of my life, I’m sure, and throughout the life of my children and probably my grandchildren. We’re going to be in an age of constant change, constant innovation, constant technological revolution, one after another. Information is going to keep getting more and more complicated and it is going to be more and more difficult for lawyers to keep up. So the kind of lawyers that love this sort of stuff, that like technology, that like learning, that like keeping up, that is going to be a role that will stay, but will constantly change. The name we give it may vary and differ, but that particular role is going to stay. Not only is it here to stay, it’s going to get bigger and bigger and more important.