Lawyers use evidence to prove a case. Why not apply that same discipline to law practice itself? Medicine is adopting an evidence-based approach, relying on well-controlled studies to determine which diagnostic tools and treatments work best. An article about contract attorneys makes me think the same approach is necessary in the legal market.
Calling Up Reinforcements in The Legal Intelligencer describes the extensive use of contract attorneys to review documents in litigation. It reports that at least in some instances, clients ask law firms to use contract lawyers to lower costs.
Determining the most cost-effective way to review documents is an empirical question. I have previously suggested that offshore lawyers might be able to review documents. Another option would be to rely on advanced full-text engines to perform a first-pass cut, reducing the quantity of documents humans must review. (For more on full-text, see here and here.)
To be sure, the offshore and technology options raise issues. In addressing these issues, lawyers too often rely on uninformed reactions – “we have not done that before” or “there may be ethical issues” – rather than on solid, empirical data. Perhaps a consortium of clients (as suggested recently by Cisco) could muster the resources to collect and analyze data. It would not be that hard. One would need a set of documents reviewed by the “gold standard” of associates. Then take that set and run it through contract attorneys, offshore attorneys, and various full-text engines. Have a statistician determine the comparison criteria prospectively and then compare outcomes. Be prepared to run the test more than once. Use the outcome to establish a best practice and periodically re-validate that process.
Lawyers may never conduct such tests but if e-discovery costs keep rising, a time may come when corporate CFOs step in, commissioning an empirical study and and imposing the findings on their law departments. And if the CFOs are in charge, lawyers may have less influence in how various concerns are weighed in reaching a business decision concerning the best way to review documents.