The punchline of a new electronic discovery (EDD) brouhaha confirms an argument I’ve long advanced with which lawyers and judges seem to struggle. Quality legal work can only be measured relative to an alternative approach. 

Many a post here has criticized lawyers and judges for assuming that whatever they do now is right. I try to counter knee-jerk reactions such as “We can’t use software to review documents, it might make a mistake” or “We can’t use offshore lawyers to review documents, it might make a mistake”. True, but hardly helpful unless you know how mistake-prone your current approach is.

The lead sentence of a Recorder article (19 Sep 08):

“Two critical e-mails in a stock option prosecution against McAfee’s former general counsel weren’t turned over sooner because contract lawyers at Howrey had marked them ‘not relevant,’ a Howrey partner explained in a federal court in San Francisco Thursday. ” (Trial of McAfee Former GC Begins, Delay in Disclosing Critical E-Mails Explained)

For further commentary on the mistakes of the contract lawyers, see Dumping on Contract Attorneys at Legal Blog Watch.

Personally, I’m not dumping on contract lawyers. It’s natural that in any high volume operation, mistakes will happen. My concern is that when software or offshore lawyers make a mistake the legal profession will “run for the hills” and use that as a reason to exclude those approaches. If we apply that logic to the circumstances of this case, then BigLaw can no longer use contract lawyers.

This is your wake up call legal profession: unless you can quantify, using empirically sound methods, the quality of your work, you cannot begin to assess alternative approaches. Moreover, without that quantification, you too at risk for judges saying that heads will role.