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Is a JD Really Necessary to Do Document Review?

Last week I posed a question on Twitter:

“Does a person doing #eDiscovery doc review need a JD? Not asking what market wants. Asking what law / ethics say.”

That led to a lively discussion. No one chimed in to say a JD is required. Some point out that adequate supervision by a licensed lawyer is required. That’s consistent with what litigators have told me over the years.

So why use lawyers? To me, this is a simple empirical question: what training typically produces the most accurate and reliable results. Lawyers may honestly believe a JD produces the better results but I doubt they can point to actual data.

Reply  Tweets were great. One pointed out that plaintiffs’ lawyers routinely hire nurses and other professionals to review documents. One suggested a JD is a CYA move.

And another said lawyers mistake a high hourly rate for expertise. Daniel Kahneman, in Thinking, Fast and Slow, calls that attribute substitution: where you can’t readily measure something [output quality], measure something else easier [hourly rate], even if it relates poorly. Perhaps the entire notion of requiring legal training for document review is another example of attribute substitution (measure the training, not the output).

So I leave this question to my readers with three comments and caveats…

I refer here to “JD” because in some document reviews, clients require a law degree but not necessarily a law license. Also, the offshore staff of legal process outsourcing companies typically have (local) legal training.

The advent of computer assisted coding does not affect this question. At least for the foreseeable future, we will need humans to review documents.

Document review is an economic lifeline for many JDs. If we said we want to employ them, I like that answer much better than simply asserting a JD makes for better reviews.

[Updated 19 Mar 2014: A robust LinkedIn conversation of this post is taking place, based on my having written an update pointing to this post. If you do read, note at bottom of comments a small “1” and “2” which allow navigating between two screens of comments. Link opens to page 2.]

  1. Jonathan Maas

    I have set up and run many review teams over the course of my 30+ years in the business. When it is merely a review of fact and issue allocation all I need (and it’s a big ask) are people with the requisite aptitude and attitude. With the correct interview process, and suitable testing of review ability prior to hire, I can pretty much guarantee good and (more importantly) consistent results when the team is efficiently managed and supervised. You do NOT need a legal qualification to conduct this type of review. To be frank, quite often that’s the very last thing I want as someone with that degree of training is not automatically suited to long days of document review AS A RESULT OF THAT TRAINING. People with a legal qualification are looking for a longer term job as a qualified lawyer in the firm and consequently do not tend to have their eye on the job in hand. They can even regard the review as beneath them, but a necessary act in order to get their feet in the door. That is not what I look for or want in a reviewer.

    However, when it comes to matters of a more legal nature, such as a first pass privilege review, then, naturally, one needs to look at people who have a good idea of what they’re looking for. Understanding what is or is not privileged is not an exact science and a degree of sympathy/understanding is really very useful. I liken it to the application of the offside rule in sport. We ALL know we’re right!

  2. Ralph Losey

    Ethically the person making relevant or not legal judgments must be a licensed attorney or paralegal. I must respectfully disagree with my friend Greg Bufithis on this. I’m pretty sure most state law Bar associations would agree with me, including especially the great State of Texas. The close questions are the stuff of rocket science. No wait, rocket science is now pretty well understood, high school stuff. Some case legal issues are far more complicated that that. Especially when you go beyond simple yes of no, which most reviewers do, and get into issue classifications, confidentiality analysis and AC priv analysis. I do not even like to trust first year associates with that.

  3. Andy Wilson

    Great question. My answer: they most certainly do not for the vast majority of data they review. Using fragments of document metadata, my grandma could sweep through cosmic sized sets of data lawyers commonly review today without actually reviewing a single document. My grandma is not a lawyer.

    The data we see with Logikcull is that large bulk tagging document decisions are being made without actually looking at the documents. It’s upwards of 80% of an initial collection at times. And it’s done in minutes or hours depending on the analysis.

    We also see the type of users doing the work and it’s most definitely not always attorneys. Especially for the early pass. That’s usually a paralegal title or legal support manager.

    I equate this type of review as looking at the obviously irrelevant stuff first, which anyone that’s ever used Amazon for product search can easily do with little to no training. So, until the majority of documents are all highly responsive or hot documents (they aren’t by a long shot), doc review can be and probably should be done by non-attorneys.

  4. Ron Friedmann

    Greg – Thanks for sharing the info about college grads and paralegals. My concern is that many lawyers do treat document review – and much of lawyering – as if it is as mysterious or difficult to characterize as cosmic inflation! If law practice were seen for what it really is, which is a lot of process and content management, we could make many aspects of it far more efficient.

    (Re “cosmic inflation”… Greg and I refer to perhaps the most important science news since discovery of Higgs Boson: “Space Ripples Reveal Big Bang’s Smoking Gun” http://nyti.ms/1onYvHg)

  5. Gregory Bufithis (@GregBufithis)

    Given 1,000s of paralegals … with little if any supervision … are doing doc review across the country, with excellent results, I’d say a JD is not required. Anybody can be trained to do doc review. Right now, in TX, recent college grads are undergoing e-discovery/doc review training in preparation for a large upcoming review. Initial results? Excellent. This stuff is not rocket science …. or cosmic inflation ;-)