Reflections on Legal Ops: A Prescription for Clearer Vision in 2020 and Beyond

Blog by Mike Russell, Lean Leader – Legal Operations, Trane Technologies

Cobra recently convened a panel of experienced legal operations professionals to provide insight to the volatile, uncertain, complex and ambiguous times that have become the new normal. Indeed, this VUCA – a common military acronym for the world in which they operate – can help us decide where to expend resources to attain results in times of uncertainty.

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The Changing Legal Landscape in the Wake of COVID-19

As the global population grapples with the unprecedented health and economic fallout of the COVID-19 pandemic, law firms have an opportunity to modify how they conduct business and service their clients. While dozens of law firms have announced cost-cutting measures such as layoffs, furloughs, and salary cuts, any near-term slowdowns in legal systems should give way to an upturn in litigation and restructuring practice areas. In addition to stalled litigation matters coming back to life, the legal industry should expect a surge of COVID-19 related litigation. Court filings have already shown a rise in protracted litigation related to COVID-19, and along with it, large-scale discovery. Some examples of the various types of COVID-19 related litigation include:

While law firms may see an increased demand for certain legal services, their clients will be weighing the significant risks facing the global economy as countries slowly reopen. Although analysts are predicting significant third quarter growth, the general consensus is that even the expected rapid recovery will still leave the United States economy with an output gap. As often happens during economically perilous periods, companies will reassess how they use and pay for legal services. Law firms can anticipate such assessments by fostering open and honest communication with clients, while exploring innovative and flexible ways to deliver legal services.

Businesses are experiencing the same anxieties felt by individuals during these uncertain times. Accordingly, law firms should assure clients they have a partner to help them through the forthcoming economic recovery. Law firm partners should connect with clients and truly listen to and process clients’ concerns and needs. Firms should then take concrete steps to adjust to clients’ shifting needs in the current environment. Receptive firms will take the lead in providing legal solutions, anchored in hard data and impartial advice. The deluge of information currently being churned out can confuse clients. To avoid getting lost in the fray, firms should highlight how they can leverage their specific expertise and resources to assist clients. Clearly defined solutions tailored to clients’ unique situations will stand apart from generic articles and email blasts.

The projected increase in COVID-19 related litigation coupled with economic uncertainty will also place pressure on pricing and require shifts to alternative delivery models. Flexibility and creativity are essential to addressing clients’ pricing concerns. Law firms may consider pricing models that offer clients greater cost certainty by capping fees or by implementing outcome-based fee structures. In lieu of across-the-board rate reductions, firms may elect to offer one-time discounts, flexible payment terms, or credits toward future legal services.

Law firms should also evaluate opportunities to collaborate with alternative legal service providers to help reduce costs and increase productivity.  Alternative legal service providers can provide litigation support, legal research, contract review, and/or e-Discovery services that simultaneously provide access to expertise or resources firms may lack in-house and allow firms to use existing resources more efficiently and strategically.

The COVID-19 pandemic has compelled innovators across industries to identify underutilized tools and implement alternative work paradigms. Businesses, including many law firms, have adjusted with surprising speed and ease. Entrenched ways of doing things have been supplanted with effective and efficient alternatives that, in many instances, have led to increased productivity and output. Law firms would do well to build upon that momentum to provide customer-centric, data-based legal solutions.  Guiding clients through the current social and economic storm can and will produce stronger, more productive partnerships.

 

Coronavirus & Business Interruption Disputes

The effects of COVID-19 (coronavirus) have swept across the US and most other countries. While the initial focus was on learning about the coronavirus and our public health systems’ response to it, the trickledown effect of coronavirus-initiated lawsuits didn’t take long to make its way into the U.S. court system. March 2020 was a pivotal moment in the US response to the coronavirus: escalating travel restrictions, declarations of national and regional emergencies, and stay-at-home orders. While governments, companies, and individuals were grappling with how to adjust to these rapid developments, the first coronavirus-related lawsuits were popping up.

As more stay-at-home orders were put in place nationwide, businesses began filing business interruption claims with their insurers to recoup their losses from those closures. Insurance providers denied the claims, stating the policy coverage must be triggered by physical damage, like a fire or earthquake. Some business owners found their insurance policies specifically excluded virus-related losses, language added by some insurers to their policies following a string of million-dollar claims from the SARS outbreak in the early 2000s.  The recent rioting has spurred a large number of physical damage related claims but some are finding the response mixed.  These claims, like the business interruption claims, are sure to be complicated and lead to litigation.

Insurers have also denied claims related to state or municipality stay-at-home orders and asserted under civil authority clauses. Civil authority coverage is tied to a government order prohibiting access to the business property due to physical damage of a nearby property. Civil authority coverage was strictly interpreted in 9/11-related insurance litigation, where courts found travel closures resulting from the attacks did not directly cause damage to the policy holders because they were put in place based on fear of future attacks.  Similar to business interruption coverage, civil authority coverage usually has a physical damage requirement that is the crux to insurers denial of claims.

Lawsuit claims quickly followed after businesses began to receive coverage denials from their insurers or after stay-at-home issues were ordered. One of those first lawsuits was filed by Oceana Grill in late March against its insurer in Oceana Grill v. Certain Underwriters at Lloyd’s, London. The New Orleans-based restaurant saw coronavirus-related orders issued by the Louisiana governor as a qualifying event for their all-risk policy.  Filed the same day as the Oceana suit, the Choctaw and Chickasaw Nations brought claims against their insurers arising out of their casino closures, just hours after the Oklahoma governor announced a stay-at-home order. Since March 24th, a variety of businesses across several states have filed business interruption and civil authority coverage suits (wig shops, movie theater operators, scuba stores). The restaurant industry is so heavily affected by this issue that leading chefs and restaurateurs, such as Wolfgang Puck, founded the Business Interruption Group, a non-profit focused on advocating for insurance payouts caused by losses from the coronavirus.

Insurance companies’ statements regarding business interruption coverage in relation to the coronavirus reiterate the physical damage requirement for coverage, along with policy-specific exclusions that would preclude coverage in a pandemic. One insurance company has even filed its own declaratory judgment action against a law firm policy holder in federal court, saying the insurance claims by the defendant were not covered under the policy because there has been no physical damage to the law firm.

While most of these suits have been filed in state court, there are at least two plaintiffs asking the  U.S. Judicial Panel on Multidistrict Litigation to consolidate cases due to the volume of similar cases being filed. These two petitions are scheduled to be reviewed by the Multidistrict Litigation Panel in late July.

As these cases work their way through the court system, state and federal governments may try to resolve these issues via legislation. Several states, including New Jersey, New York, and Pennsylvania, have proposed bills that would require insurers to pay out coronavirus-related claims. At the time of this writing, none of the bills have passed and are being opposed by the insurance industry.

The sweeping nature of the coronavirus pandemic and how it has affected business will play out in the courts system over time, as will any potential legislation. While they procedurally work through their respective systems, it will be interesting to see if there is a rise in demand for pandemic-specific insurance policies.  Organizers of Wimbledon had the foresight to take out such a policy after seeing the effect of SARS, resulting in a payout of more than four times what they paid in insurance premiums after the 2020 tournament was cancelled because of the coronavirus. We will ultimately have to wait and see how the courts, legislation, and the insurance industry respond to these unprecedented times.

 

*To read more about the impact of coronavirus in the legal profession, check out this article on Deploying D&O and Cyber Insurance Coverage Against COVID-19 Claims.

 

 

 

EI vs. AI

Our reality today has been propelled into a realm of possibilities, solutions and innovations we could never have imagined if it weren’t for artificial intelligence. AI helps us immensely improve our productivity and quality of work. While the emergence and innovations accompanied with AI opens many doors leading us forward, it is necessary to emphasize the integral importance and potential of our EI, emotional intelligence, as well. The mutual emphasis for both intelligences working together, I believe, results in a win-win for organizations and individuals alike.

Emotional intelligence can, indeed, go a long way in determining one’s success. We all can say that, from our own experiences, which are mixed compositions of failure, humiliation, disappointment, fear, anxiety as well as opportunity, success, growth, and moments of motivation and encouragement. At some point, realization sets in that there is no perfect formula or set path for one’s success or happiness. At this point of realization, emotional intelligence becomes a fundamental component and utility which helps us to recognize our unique strengths and abilities and to harness them into productive work that is mutually beneficial for both the individual’s success in their career and in quality of life.

Although emotional intelligence plays a key role in an individual’s success or failure, there is no standard to measure it. What one may consider success, another may consider failure or unimportant. The contrived “standard for success” can exert indirect pressure or influence on individuals who, consequently, tend to follow a societal driven path to attain it only to find themselves unfulfilled once they do. It is important to have role models to look at for inspiration and guidance. The problem starts when we lose who we are as individuals from following too closely in someone else’s footsteps and we lose identity in this process. Not all of us are meant to be doctors, scientists, lawyers or CEOs. However, each of these occupations cannot be successful without the help of others.

Emotional intelligence starts with our intuition or inner-truths, which emerges when we become focused on our subconscious and accept our vulnerability along with our strengths. Our subconscious transmits stored information and intuitive responses when faced with a new challenge or situation. A deeper introspection can help lead us to find new solutions, processes and ideas that will not only lead the individual to success but benefit the world around them as well.

A  closer observation may reveal that most leaders, inventors, innovators and revolutionary thinkers are the individuals who didn’t look outward at others for guidance but looked deep within. This phenomenon is well represented in management through the Johari’s Window, which splits the human mind into four quadrants, one of which is unknown to self and unknown to others. Human potential is a very powerful tool if explored, understood, and channelized. It can be the most potent weapon if comprehended by the individual. Men and women who have the requisite emotional intelligence become our leaders who we look to for guidance.

Within an organizational framework, individuals may operate independently, however, as a team they become interdependent individuals. This is precisely where the need of emotional intelligence in organizations becomes essential. It helps boost one’s self-awareness, selfcontrol, motivation, empathy, and social skills, all of which help one become better leaders. While artificial intelligence continues to innovate and push our world to greater heights and new solutions, it will never replace the importance and value of its counterpart: emotional intelligence. After all, we would not have AI if it weren’t for EI!

Sincerely,

 

The Third Eye (aka: Sakthi Venkatraman)

Manage or Be Managed

Imagine having the minds of over two-hundred robust lawyers and technical engineers working together in a high-intensity, fast-pace office, around-the-clock, juggling dozens of extremely sensitive projects, corresponding with clients and outside counsels from all over the globe. Now imagine being in charge of managing all of them. This is my reality. This is what I do every day, and I absolutely love it.

While my title is “Managing Director,” I like to think of myself as a “Coach.” Coaching people is one of the most satisfying, rewarding and humbling jobs you can have. When you see the people you’ve helped coach grow and achieve their goals, it makes the job more than worth it, but really mean something more than just a job that pays the bills. Twenty years of experience in outsourcing should be a sufficient testament to this. Working with clients and people from all over the world, I am able to do what I love: coaching talented, smart and driven individuals to excel on a global scale. For me, working with Cobra is the incredible experience and opportunity to work with a team (in the true sense of the word) of passionate, diverse people who have serious fun with a unique purpose and common goal of making a positive impact on the lives and world around us. When you work in a culture of talented and skilled people who support and respect one another, it makes my job and what I love to do easy and fun, but most of all, exciting.
At Cobra, we don’t compare ourselves to anyone else. If eyes tried to talk instead of doing their job of seeing, they probably wouldn’t have a lot to say and you’d bump into a lot of things. Like the functions of eyes to the overall utility of the human body; each and every individual at Cobra has a purpose that utilizes their personal strengths and skills allowing the Cobra unit, as a whole, to operate on all cylinders, full-speed ahead. We focus on our own passions and talents, being the best in what we do. This makes Cobra, as a whole, the best it can be.
Transparency, integrity, and respect for one another are at the core of our values and culture. Personal talents and strengths are identified, nurtured and encouraged. We strongly believe in collaboration with the entire Cobra team; especially when you have some of the youngest, most innovative and creative minds coming together under one roof. My job is to take and grow these minds, channeling their energies into constructive, productive objectives that, while benefitting Cobra and its clients, also develop their careers and personal character.

Second life: At Cobra, we celebrate and respect that we only have one life to live; so we better live it to the fullest. It is my job to ensure a happy, productive and understanding work-place; that the team stays driven and motivated. People come from all walks of life, with different backgrounds, cultures, family dynamics and beliefs. We more than understand that we are all different and special in our own way and celebrate these differences! We respect each other and take pride in who we are and what we do.

We play to win: As stated earlier, we are all here for a unique purpose; we want to excel and exceed expectations, not just for “the client,” but also at individual capacities. Our competition is within ourselves; we have to strive each and every day to be better, to be the best self we can. Whether we’re working on a document review or on app development, contracts management or mergers & acquisition, system integration or training, data security or information security, or practicing for a company talent show; what makes us come together as a team is our shared belief to do the best we can at whatever we do . I make sure our team understands these organizational objectives, continually setting higher standards for success not just for Cobra, but for the legal tech industry and as a society. Almost all of our project and senior managers have been with the Cobra team an entire decade, establishing and evolving the Cobra system into the best in our industry.

Learning is an ongoing, unceasing process. The shared hunger of the Cobra team to experience and learn new things allow us to collaborate, grow and innovate together. The motivated exploration into new possibilities, services and technologies come naturally to us. We strive for innovation, to enhance the way of life for people, one client at a time. You cannot replace the human-element; caring, understanding, listening and respect are invaluable in life and at work. We work together, we learn together, we grow together, we win together: It’s about encouraging each other’s talents aimed at a common goal. Cobra is a 99% diverse organization, with 80% women, one of which is our CEO, Candice Hunter Corby. How well the team is able to work together is a testament in itself, we don’t follow generalized, typical procedures; we create our team based on who we need and the best person for the job. We respect each other and value each other. Everyone is a star here, if not a super star in their own right. Living and working from Cobra’s India office, I would never have guessed that people from Austin, Texas and Chennai, India would be so similar! People first; any day, anywhere, any time. Period! I remember once while visiting one of our clients, the client asked me: “How is Cobra different?” I responded, “How are we not?” Five years later, we maintained a great relationship working with the same client, so much so that she came to India to visit our offices in Chennai. It was my turn to ask her the same question: “So, what do you believe is different about Cobra?” Her response was the same mine had been five years before. #WhoIsCobra? Well, I guess you’ll just have to find out for yourself!

Sincerely,

 

The Third Eye (aka: Sakthi Venkatraman)

Recruiting and Retaining the Best Legal Talent in the World

From Cobra’s inception in 2007, its commitment and careful attention to building the best team has been the foundation of the company’s success and standing within the legal industry. Twelve years later, in a highly competitive alternative legal services provider market, Cobra’s team continues to deliver and delight its clients. As a result, Cobra in 2019 has more than doubled in size and finding and keeping a great staff is even more critical.

Cobra’s team is comprised of highly-motivated, dedicated and talented individuals from diverse backgrounds and cultures. Cobra’s team of attorneys, 70% of whom are women, are carefully chosen from the top law schools. Nearly 10% of the team has been with Cobra for over a decade and 30% have been with Cobra for at least 5 years. We posed some questions to our colleagues Sakthivel Venkatraman, Managing Director – India and Vice President of Global Administration, and Nithya Chandar, Senior General Manager – Human Resources, about how we build the best team in the business

How do you identify the right person for Cobra? What are you looking for in a candidate?

We started out with a very specific hiring process designed to find people who would thrive in our culture, and that process has evolved over the twelve years we have been serving our clients (as the LPO industry has matured and we have faced more competition for great candidates.)

Our first step is, of course, screening. We are always looking for lawyers with a drive for providing excellence and value for our clients, with a strong academic and/or work background. We look for lawyers at all experience levels as we understand not every job requires decades of experience, but often do have the need for deep expertise. Cobra highly values in-house legal experience as many of our clients are in-house counsel at large companies. Even at the very early stages, we rely heavily on recommendations and welcome candidates who are already known to and respected by someone already employed by Cobra.

Typically, resumes are screened for qualification in law from recognized universities. Candidates must be graduates of an accredited 3- or 5-year law program. We also look at candidates who are in their final academic year and consider their applications subject to their clearing final exams. Although we encourage candidates with work experience, it is not mandatory to have held a legal position to be considered for a Cobra role.

Once the initial screening is done, the applicants take a test modeled on the LSAT that tests their general and legal aptitude, research and writing skills. In addition to the online test, the candidates are also put through a brief assignment in contract management. The candidates who clear the tests proceed to the next stage in the recruitment cycle, which is the personal interview. Naturally, we carefully verify credentials (academic and past work experience) of each candidate who makes it to the interview stage.

Each candidate shortlisted through our hiring tests appears before a panel of three Cobra team members for an interactive interview. The candidate is encouraged to speak openly about background, goals, and why they are interested in joining Cobra. This interaction, though brief, is nevertheless valuable as it gives the panel members insight into the candidate’s overall skills and potential. Quintessentially, the right candidate for Cobra is someone who reflects a positive outlook and has high core values. The panel members, while seeking the best people for Cobra, care about helping these young lawyers make appropriate career choices – in other words, we consider the panel interview to be more than just a recruitment exercise. We are growing and taking on very large projects. That means speed counts in choosing and on-boarding new attorneys.

How do you tackle that, especially when you may be recruiting, selecting and training lots of people at one time?

You have hit on a very timely point. We are at a crucial juncture for Cobra, with so much growth so quickly. But – that is what our human resources team has been anticipating and we are ready! Witnessing Cobra’s phenomenal growth in size and capacity has been the most exciting phase for Cobra’s senior staff who have been with the company since its inception. Our long-standing relationships with law schools, along with referrals from current team members, have made it possible to onboard new attorneys quickly. The law schools extend to us a helping hand in organizing campus tests. This allows large numbers of students to take the tests at one time. Our strong rapport with the law schools makes it possible for us to translate our resource requirements to them easily, and they help us reach out to a large student pool, including their alumni. We are especially proud of our training for new hires, as we seek to introduce many new lawyers at one time to the LPO industry. We have developed general training modules on the fundamentals of document review, contract management, and legal research. Our project managers work with clients and their outside counsel and offer customized modules for particular matter requirements. The training is extensive but compressed into an onboarding period – we find that works well, because while their school experiences and the training we offer are essential to success, for most lawyers around the world (really, for most professions) the best possible way to learn is on-the-job with close oversight and supervision.

Give us an example of a recent recruiting experience that went well, and why?

During our recent experience with campus hiring, we were able to look at a wide scope of law schools and identify abundant talent for hire. There is great potential in this generation of graduates, as they possess technical skills and are much faster adapting to the work and the technology, we use than our recruits from a decade ago. Recently we were able to hire an attorney with over twenty years of experience in a matter of weeks – she was referred to us by one of our trusted project manager attorneys who understood our requirements and expectations. That’s the power of referrals.

People seem to stick with Cobra once they start. What explains Cobra’s excellent retention rate for its attorneys and staff?

Cobra’s leadership team believes in investing in people and building and mentoring them to higher positions within the organization. The senior attorneys and management team have all completed a decade or more at Cobra. This, in itself, is a testament to their strong faith in and an unrelenting commitment to Cobra. But it isn’t just at the senior level. Cobra believes in an all-encompassing work culture where all of its people are given due attention and care. First and foremost, we expect and enforce respect in the workplace. For example, Cobra regularly spearheads sessions on harassment and a respectful workplace. We do charity work together – Cobra supports the cause of differently-abled citizens, organizing sports meets and events for them. As a group, Cobra’s team members show a great inclination to give back to society in some way and strive to be responsible global citizens. Another thing I’ll mention is the internal effort to cross-train. Several training plans and programs are initiated by senior team members each month, which are great platforms for knowledge exchange.

What are the first six months like in the life of a new Cobra attorney?

All new hires complete the joining formalities, which include signed offer letters, non-disclosure agreements (we take our clients’ security and confidential information extremely seriously) and forms for technology access. Once this is complete, the new employees are put through a pretty typical human resources orientation, consisting of an overview about Cobra, its vision, policies and procedures, and information security awareness training. During the first six months, these new hires are acquainted with our corporate culture, sharpen their communication skills and are trained for other lines of work at Cobra. We offer training modules geared towards the type of work the new hires will be doing, including client-specific training.

What advice would you have for attorneys seeking to work for Cobra, or for any so-called
“alternative legal service provider”? What are the benefits? What are the disadvantages, if
any, that they should consider?

Cobra offers a solid training platform for what we call “freshers” who want to explore the corporate legal world. This kind of alternative career is a paradigm shift in the legal arena, as it opens doors for law graduates who do not want to work in courtrooms and are looking for something unique and rewarding. Cobra hires full-time and part-time employees and contractors depending on the client’s or Cobra’s needs. However, no matter what type of engagement with Cobra, Cobra treats all of its employees and partners as part of the Cobra team.

Where I’m From

When crafting this post, I was considering a number of different topics that are relevant to legal operations professionals. From eDiscovery to contract management to aligning value for allocation of resources, I thought about all the current projects we’re working on with our clients and how I could tie that all together. Makes sense, right? Then I got an idea from another source. My fiancée’s 9-year-old daughter did a project in school titled “Where I’m From…”. In it, she listed all the things that made her what she is today…things like “I am from watching the sun go down on the beach” and “I am from listening to old songs”. It was a beautiful glimpse into her thoughts and what she identifies herself with. It made me think about what MY identity is and how that relates to the choices I’ve made in my career. So here goes!

I AM FROM…
• I am from finding answers to tricky questions related to the intersection of data and the law
• I am from helping legal professionals make better decisions that reduce cost and risk globally
• I am from the thousands of excellent people I’ve gotten to know in my travels
• I am from the portion of those who have become good friends over time
• I am from both the legal software and the legal services disciplines
• I am from improving processes, not automating bad ones
• I am from understanding the needs of my clients first
• I am from way too many conferences to easily count
• I am from many days and nights on the road, too
• I am from a team of incredible women and men
• I am from hard work, creativity, and gratitude
• And that’s where I’m from!

There are more statements that I could make but these are the core things that have made my career a rewarding one and have helped shape my work identity. My decision to join the team at Cobra Legal Solutions fits in with that as all our people embody the above ideas and more. This has allowed me to combine all my past experiences with theirs to create the best value for our clients while leaving their legal operations and processes better than before. This is where I’m from but the story of where I’m going is being written now in every engagement and every interaction with legal professionals each day. Where are YOU from and where would you like to go? If any of the above strikes a chord with you, let’s talk and see if we can work on this together.

Sincerely,

The Guru (aka: Doug Kaminski)

Creating and Driving Value for Consumers of Legal Services

The news is full of predictions for change in the business of legal services. Disruptive technologies, new entrants to the market, demand for legal process improvement, and ensuring that data integrity and security are solid are all important issues but detract from the main driver. The lack of perceived value derived for the consumers of legal services is the driving force. With the rise of the legal operations function within corporate legal departments and the subsequent demand for receiving more value and innovation from their outside counsel, optimizing the delivery of legal services has become the main focus. This is a big shift in the driving force for change within the profession as most all prior drivers have been largely cost based. Since litigation, investigations, and review work (discovery, contracts, and due diligence) are the largest bucket of legal work performed within most organizations, applying the optimization approach to these areas can produce significant savings in cost and time spent. With market pressures and a decade of procurement measures pushing the cost for discovery services to a low ebb, the need for process improvement is that much more important. That said, this is more than just adopting new technology to automate certain tasks or solving for lowest cost option. Much of the ethos of legal services and their delivery is changing to a value-based mindset that focuses on easier access and collaboration while providing the needed improvements in process to optimize results.

THE MOST EXPENSIVE EYEBALLS

Richard Susskind, OBE FRSE, has long been a proponent of the transformation of the legal profession to increase value and access to justice. In a commentary on this topic for Harvard Law School (https://thepractice.law.harvard.edu/article/speakers-corner-richard-susskind/), he calls for “the ‘decomposition’ of legal work into component tasks, the more routine and repetitive of which should be undertaken in ways that are much more efficient than the methods of traditional, one-to-one consultative advisers who handcraft and charge by the hour.” This breaking down of legal tasks into a matrix based on risk, cost, and complexity leads us into a world of insourcing, outsourcing, and computerizing the process-based and more administrative work clients are no longer willing to pay to be done by more traditional and higher cost means. Basically, optimizing the legal function to reduce the need for the most expensive eyeballs on all tasks and freeing up their time for the more complex, higher risk matters. Though many efficiency measures are considered in this approach, the most recent Chief Legal Officer survey by industry experts Altman Weil has shown that outsourcing to non-law firm vendors has produced the biggest impact: The top four items named in the survey are all resource realignment efforts that follow the approach advocated by Susskind. All have produced the results desired with somewhat mixed results from using temporary or contract workers. Note that the knowledge and metrics-based initiatives, as well as process improvement, have also shown early success, but it is just too soon to tell the full impact.

THE PRICE OF LIGHT

AC Nielsen, founder of the global information measurement company of the same name, said that “the price of light is cheaper than the cost of darkness”. Analytics, machine learning, artificial intelligence, and knowledge management are all tools and disciplines now being applied to the legal profession to gain more insight on deriving more value by learning from the past while also making better decisions in the future. The same have also been harnessed to automate routine, predictable, low risk tasks to further the impact. As corporations look to drive efficiencies across their operations, they are employing these tools to help take more control of their internal legal processes in lieu of deploying more personnel. The 3rd Annual Analytics Survey conducted by the Coalition of Technology Resources for Lawyers (CTRL), partnered with The Information Governance Initiative (IGI), surveyed corporate in-house counsel to determine how they use data analytics in eDiscovery, Information Governance (IG), and other disciplines. The clear majority of respondents said that data analytics will be “will be very important, will be considered indispensable, and [their] use will be widespread” among the legal profession over the next 10 years.

Due to the large volumes of data involved, analytics in eDiscovery continues to lead the way with “95% of practitioners indicating that their spending in this area will grow or stay level.” Additionally, three times as many organizations indicate they will “start using analytics for eDiscovery in the next 12 months.” Other use cases for analytics are showing increased usage rates, with massive growth in Outcome Analysis (up 42% over last year), Information Governance (up 78%), and Contract Review (up 146%). A detailed infographic with more detail on the usage and use cases can be found here: http://ctrlinitiative.com/wp-content/uploads/2018/02/11097-IGI-CTRL-Infographic.png Not surprisingly, culling irrelevant and non-responsive data is still the top use of analytics for eDiscovery but true early case assessment (ECA) has gained in popularity as has the use of analytics to speed up the privilege review process. Beyond putting the most relevant data in front of reviewers, analytics and machine learning also reduce the volume of people needed while increasing throughput. A two-year study of over 10,000 cases by a leading review platform developer found that the use of analytics allowed reviewers to code nearly 3 times as many documents and the review team size was 36% smaller than those not using analytics. Defending a legal position, making better “go/no go” decisions, learning more about case facts and key people earlier, and arguing proportionality are all made more impactful by knowing what is inside your data through analytics. Use of related data insights are now becoming more common, too. For example, many companies and their outside counsel are now performing “information governance screens” on their data to determine the source, age of the data, and volume then comparing this to records retention schedules and legal hold periods to determine how much data should have been disposed of prior to the legal hold being enacted. These insights into upstream information governance help inform where to focus for defensible disposition initiatives. Sensitive data screens can similarly be done to help control leakage.

CONTROL YOUR DATA’S DESTINY

One of the more important movements in legal operations is the push toward centralization of data or, at the very least, getting closer to the sources of data to reduce the messy handoffs in discovery and to gain more insight. Centralization when under control and direction of the company also helps in the data security functions, defensible disposition, and compliance. Borrowing from the environmental movement, centralization of data also allows us to “reduce, reuse, and recycle” much more readily. A litigation repository, especially one grouped by custodian, provides more insight into your data patterns such as most active custodians, which have the largest data volumes, and more. Single sourcing significantly reduces the need to continuously collect data from the same sources over and over. Reusing decisions in addition to reusing data furthers the savings in time and cost. Applying decisions from past cases, especially for privilege, reduces the need to look at the same data again. Creating a “privilege bank” with a master database of the data and previous privilege decisions makes that process even easier. Other decisions and data can be recycled to spot trends across cases, yielding additional insights that may help tie to outside counsel selection by matter area, budgeting, and more. Process improvement is now being applied to discovery in the form of standardized workflows, protocols, playbooks, and level setting with reviewers and outside counsel. This produces more consistent results while also ensuring better quality control and predictability in outcomes.

PUTTING IT ALL TOGETHER

Through a legal process optimization approach and judicious use of outsourcing, insourcing, and technology assistance, we can significantly improve the value delivered from legal services. While doing so, apply these basic ideas in addition to those outlined above:
• Move beyond pricing focus to a process focus
• Don’t automate bad processes
• If it doesn’t make a difference, why even do it?
• Innovation is a team sport

Sincerely,

 

The Guru (aka: Doug Kaminski)

CLOC 2019: BEYOND LEGALOPS 1.0

Today we’re talking with Doug Kaminski, EVP of Cobra Legal Solutions and a veteran of legal industry conferences spanning over two decades, about the recent Corporate Legal Operations Consortium (CLOC) Annual Conference in Las Vegas.

What did you think about the educational sessions at CLOC2019?

Having been to almost every legal conference out there, I can honestly say that I’m impressed with the depth and quality of the educational content at CLOC. Unlike some of the conferences early this year, the sessions have fresh content that’s delivered in a meaningful way by thought
leaders and high-caliber practitioners from in-house legal teams and legal service providers. The topics were well thought out and timely, full of information and best practices that attendees wanted to hear. I was in a number of sessions that were standing room only despite having ample space…not something I’ve seen at other conferences. What struck me the most was the lively engagement with the attendees that sometimes became spirited debates. To me, that’s a sure sign that the content is excellent and thought provoking. I was part of many conversations after sessions that carried on the themes and discussions, both with the speakers and between fellow attendees. We all hope to come away from professional conferences with good ideas and maybe a new perspective or two, and, in my opinion, CLOC delivers on that.

After attending CLOC, what do you see for the industry? What is in store for in-house/outside counsel, corporations and law firms in the short term and the long term?

I think that the legal profession is at an interesting inflection point. I’m seeing signs from some legal operations managers that their approach and initiatives have now gone beyond what I call LegalOps version 1.0, mainly legal spend reduction based on procurement controls and measures. Those who have graduated from pricing exercises to true process improvement are focusing on value creation and optimizing all their resources for the legal services required. Looking ahead, both short and long term, I think we’ll see more collaboration between those requiring legal services and their supply chain. I characterize the delivery of legal services as a supply chain as this value orientation looks at all the possible resources to meet the needs, whether insourced, outsourced via traditional means, automated, or through newer legal service providers. As legal operations managers seek to optimize their processes to derive higher value, they will naturally source from whichever resource helps them accomplish this.

What is your approach to “sales” at a conference like CLOC? How do you get people to pay attention to Cobra when there are so many providers vying for the potential clients’ attention?

At this stage in the evolution of legal operations, there’s a tremendous need and desire for sharing knowledge and, frankly, blowing up old ideas related to the delivery of legal services if those ideas no longer meet the value goals of the modern legal department. As such, there’s a lot of analysis and process mapping taking place to identify the best ways to perform legal service-related tasks. This means that a LOT of conversations are taking place between legal operations managers and their peers, with providers, with subject matter experts, with counsel, and with outside consultants. I’m fortunate that I’ve been a part of many of these conversations in various roles over the years, so I’ve been able to add perspective for legal operations managers, validate assumptions or point out gaps, connect them with peers, and help them navigate and prioritize their value optimization initiatives. This has allowed me to go well beyond the usual service provider focus of “X dollars for Y services” to one of true collaboration with our clients to leave their processes better than when we began. In other words, I think that the sales role at a provider like Cobra Legal is far more about helping clients solve problems than it is merely growing top-line revenue. When you approach a conference like CLOC with that type of mindset, you get excited about meeting with people who are trying to re-engineer their legal processes because you know you can probably help them or, at the very least, point them in the right direction. I look forward to many more conversations with potential clients for that reason because Cobra Legal can make a difference and, in the process, help the overall profession mature and grow.

Tabletop War Games

This week I participated in a simulated cybersecurity incident exercise—a tabletop War Game—with Austin’s chapter of the Information Systems Security Association. Participants in the War Game each represented parts of a business responding to a cyber incident, including the C-suite, Legal, Engineering, Public Relations, and Customer Service (I played the General Counsel). We were given the facts of the incident real-time as they “happened” and we responded real-time with recommended actions and advice. The audience played the role of the general public, peppering us with customer complaints and investor questions to complicate our deliberations and actions.
This rapid-fire event was a great test of the panel’s problem-solving skills, ability to work effectively with others under pressure, and expertise. And it highlighted for me some simple takeaways applicable to any person—whether legal, technical, or otherwise—who may play a part in a cybersecurity incident.

1. Have a plan. Going through a cyber incident is living in a pressure cooker—the heat is on and everyone is testy. In the heat of an incident, you need to devote brainpower to stopping the attack, preventing damage, and recovering your business. You shouldn’t spend precious time defining roles and responsibilities, navigating political issues in your business, or deciding whose budget should cover the experts you engage. In our simulated event, the participants worked very well together due in part to their positive personalities, but also to the fact that we were provided a written plan as part of our scenario. Without the written plan, I bet we would have debated many more issues than we did, which wastes time you don’t have during a live incident. Having a defined plan created outside the heat of the moment and that addresses as many “what ifs” as possible allows a team to work better together in crisis, leading to a better overall result.

2. Know your plan and policies. Although many companies have written incident response plans, I think once completed there is a tendency to put the plan on a shelf and rarely revisit. It is critical not only to test your plan and update it regularly but for the personnel who will be called into action by the plan to be familiar with the plan. Creating an operational response plan, checklists, phone trees, or other quick reference guides can also ensure your plan is easy to understand and execute during an emergency.

3. Know your business. One issue that came into sharp focus for me during this simulation was the value of knowing your business. Many people, especially at larger companies, are hyper-focused on their area of expertise and lose sight of, or just aren’t familiar with, the big picture of the business. In our simulation, the participants only learned about our company and product lines at the beginning of the exercise, so we spent a lot of time agreeing on actions, only to have to backtrack because we hadn’t considered the impact to all of the product lines and different customer types. Your customer base—whether consumers, businesses, or government—and products impacts the way you respond to an incident. You should familiarize yourself with all of these things in advance of an incident. It is also important to have a high-level understanding of your IT infrastructure. In a critical situation where time is of the essence, people are prone to clutch the life raft without inspecting it for holes, adopting a remedial measure that quickly solves one problem without realizing the unintended consequences that could harm your business. Knowing your business ahead of time will help you spot these issues and land more quickly on a solution that won’t cause additional harm.

While having a written plan is the first step to being ready for a cyber incident, these additional practical considerations are also important to cyber incident readiness. The War Game simulation was a fantastic exercise to validate our beliefs about cyber readiness and to see them play out live.

Sincerely,

 

The Insider (aka: Renee Meisel)