1 August 2011 – Over the weekend we posted an update on the McDermott e-discovery malpractice case involving contract attorneys, vendors and privilege.  The case involves a allegedly botched privilege review.  For that post click here. 

The response from the List was enormous.  We received 980+ emails commenting on our post and the case.  

We have written a number of posts about the technological changes that have reshaped the legal industry (we hesitate to call it a profession) with a focus on what Richard Susskind, Ralph Losey and Jordon Furlong (among others) have wriiten about these past few years:  the deep and rapid technological advances (of the disruptive kind) that have led to relentless connectivity, the burgeoning electronic legal marketplace and the “decomposition of legal tasks” into component parts that can be delegated to various sources: in-sourcing, relocating, offshoring, outsourcing, subcontracting.  It has led to reducing costs for repetitive processes such as regulatory filings, document review, etc.  It has simply commoditized large sections of the law, especially document review. 

The law simply became another business, just a Law Factory.  It took the precepts of Clayton Christensen’s The Innovators Dilemma who introduced one of the most influential business ideas of our time — “disruptive innovation”, penned in 1996.   In the case of document review law firms adopted the cost-saving manufacturing principle of “just-in-time” production, and applied it to a service industry: hire attorneys “just when you need them” but only on a short-term, part-time basis.  And to make it even further removed from any hint of a profession move it to “managed review” and document review centers and out of the realm of law firms.

Result?  The McDermott case.  As many of you wrote, this case is a prime example of the myriad ethical problems in modern, assembly-line document review.   

And that’s what document reviews are today: performance under under assembly-line conditions by temps (not always lawyers) who often work 60 or 70 hours a week, ten or twelve hours a day, at rates ranging from $12.50 to $35 an hour (for English-language reviews) who are summarily fired if they fail to meet arbitrary production quotas. 

As several of you wrote:  “the work is mind-numbing and monotonous, affording none of the intellectual stimulation that a lawyer should expect.  There is often little or no quality control.  What supervision reviewers get usually has more to do with the schoolroom than with the law office, and generally focuses on production levels, tardiness, talking, number and length of breaks, etc.  Under those demoralizing conditions, mistakes are inevitable, and careless, unprofessional work is common.” 

A large number of you  pointed out reviews in DC and New York where reviewers were improperly instructed on privilege by  junior associates and/or case administrators who obviously did not know the difference between the attorney-client privilege and the attorney-work-product doctrine.  The general response?  Above our pay grade.  Don’t target yourselves by pointing out that masses of privileged communications that will be produced as a result.   We need this job.

The “schoolroom” working conditions and poor training can only be demoralizing for lawyers and will do nothing but produce indifference to standards of “professional” competence.

And as several of you said “instead of addressing these problems by improving working conditions, quality control, etc., the legal staffing agencies seem to be responding by requiring temps to sign indemnification agreements, whereby the temps agree to hold the agencies and their clients, the law firms, harmless against all claims arising out of the temps’ work”.  Normally, employers buy liability insurance to cover the errors and omissions of their employees.  This oppressive tactic reverses that arrangement, and makes the individual employee the insurer of his or her employer and its client. 

And let’s face it:  temps aren’t paid enough to cover malpractice insurance, so those who sign such contracts are simply hoping nothing bad will happen.  The McDermott case names 100 John Doe lawyers as defendants, presumably referring to the temps who worked on that review.  But one good thing is that according to Hudson they do not require temps to sign indemnification agreements.  If they had, those 100 John Does would be looking at the possibility of thousands of dollars in personal liability, for which McDermott’s malpractice insurer would certainly pursue them.  Remember that when asked to sign an indemnification agreement.

The case slogs on.  We keep you up-to-date best we can.

30 July 2011 — As we had reported in a previous post, the world’s first e-discovery malpractice lawsuit was filed in State Court in California against McDermott Will & Emery.  The case has been rocketing around the internet, striking fear in the heart of the e-discovery community.  The case involves a privilege filter through which all the collected documents were reviewed that reportedly was botched and resulted in McDermott delivering to the US government “documents that were not responsive to [government] subpoenas and were also attorney-client privileged.”  An amended complaint has just been filed with more details about the review, the contract attorneys hired, etc.

For a summary of the case from the Association of Certified E-Discovery Specialists web site click here.

For some excellent analysis on the case (plus much more) from Ralph Losey (with some cool links to Lady Gaga) click here.

27 April 2011  [updating our January 2011 post]

The global “patent arms wars”

Ah, litigation.  Truly the sincerest form of flattery.  If you have been following all the IP litigation out there the last few months you know that the most recent battle pits Apple who has gone after Samsung for violating 10 iPhone and iPad-related patents in its Android-based smartphones and Galaxy Tab.  And Samsung has countersued, starting off with lawsuits in Europe and Asia, with U.S. based lawsuits about to be filed. 

The subtext is obvious.  Apple to Samsung:  you are an unexpectedly persistent competitor, and we don’t much like that.  But for both companies, legal fights are nothing out of the ordinary. Since the beginning of 2008 the tally of U.S. cases in which either side has been a party reads: Samsung 259, Apple 260.  And if you are a contract attorney who has been in the document review game long enough you have probably been in a few of these litigations … conflicts checks not withstanding. 

It is a strategy.  For Apple, another tool in the tool box to check the rise of its biggest challenger in tablets, and the dominant user of Android, the rival operating system to Apple’s own iOS.  Apple’s fear:  Samsung’s proven ability to accelerate penetration into mid-market segments in both developed and emerging economies, across all manner of consumer electronics.  

The “patent arms wars” have reached a new level of intensity.   It’s the globalization of smartphone patent disputes.  Because the most aggressive corporate asset these days is your IP arsenal and it has affected the subjective document review market.   The financial crises has “helped” in its own way, forcing many companies to look at IP commercialization and protection.  But no surprise here.  As we have shifted from a labor-driven economy to a knowledge-based economy the intangible assets produced by a more highly skilled and services-orientated workforce have emerged as the most powerful asset class, overtaking traditional capital assets such as real property, plant and equipment.  A lovely setting for a battleground.

As we have indicated in numerous posts over the last year, foreign language document reviews have dominated the U.S. contract attorney market.  Foreign language document reviews were 62% of our postings 2 years ago, and 74% of our postings over the last 12 months.   And a big reason is this enormous growth of IP litigation which crosses multiple countries and languages and is normally quite long in duration and almost always leads to extensive document reviews.   And you can’t do it in India.   Patent/IP prosecution, yes.  Multi-language litigations, no.

It is all about the convergence of technology markets — most clearly, the clash of mobile communications and personal computing in the smartphone — which has greatly added to the complexity as well as the potential for conflict as the prime battle for market share. There are potentially more than 250,000 patents involved in a smartphone, according to RPX (one of the new era’s middlemen who buy and license patents wholesale; for more about what they do click here).

Young companies that haven’t had a chance to amass their own stocks of patents, or those moving on to new technology turf, are the ones most at risk.  In this case, that may even include a company as mature as Apple, which ventured into new territory with the iPhone. It has fewer than 4,000 patents; a quarter of those were awarded since the start of last year, suggesting that it has been pushing hard to increase its IP holdings as it moves beyond its traditional computing base.  Even Google is light in the IP department which is why it was bidding $900 million to buy the Nortel patent pool (Nortel being in bankruptcy and its assets under bid, as many of us worked through that document review) as a defense. If Google did not buy the patents, they could well end up with a competitor, or in the hands of patent trolls who are going to go out and start trouble, trolls being buyers who acquire patents purely to start legal actions (for those who have not worked on a patent troll case some background).

There are now fights against Apple in six courts, over 6 countries, involving 50+ patents.  Add to that 40+ cases filed against Android — virtually all of them against companies that have built devices using the software.  There are at least 18 non-English languages involved.  

Side note:  to stay on top of all of this IP litigation (the whys and wherefores, etc.) we always turn to our colleague Florian Mueller and his blog Foss Patents and follow him on Twitter.    

Oh, global M&A is up, too

This is not to discount the enormous affect on non-English language document review by the surge by U.S. companies to do large strategic deal-making which has boosted global mergers and acquisitions, and just the simple effect of normal-course-of-business global transactions.  The U.S. now accounts for almost half of global M&A activity, up from about a third last year.  Nine of the 10 biggest deals this year have been struck in the US, almost all leading to large, non-English document reviews, deals involving companies from Brazil, China, Germany, India, Italy, Portugal, Turkey, and Russia — to name just a few.  

Catalyst Repository Systems (links at the top of the right column on this page) was one of the first to provide multi-language search and review for e-discovery and large-scale document review.  We spoke with John Tredennick, Catalyst founder and CEO, who explained:  “We have seen corporations and their law firms dealing with this spike in electronic discovery containing multiple languages.  I can attribute this to The World is Flat era whereby corporations work globally and communicate across many languages.  Today, when documents need to be reviewed, they usually contain multiple languages — the languages in which the companies do business whether it be intellectual property, mergers & acquisitions, or just every day business processes”.    

So just in the DC, LA and NYC document review markets you have multiple language document reviews involving companies such as Aisin, Ansa, Apple, AstraZeneca, Avon, Gitti Gidiyor, HTC, LG Electronics, Merck, Nissan, Pfizer, Research in Motion, Samsung, Sony, Takeda Pharmaceuticals, Toshiba –  to name but a few. 

For the agencies staffing these projects it has meant being quick and very flexible.  Jeremy Michalson of Diamond Personnel in NYC says of this spike in language projects:  “Many of these CJK projects [Chinese-Japanese-Korean] are a result of the deluge of Asia deals by companies in the U.S. and western Europe.  Facing sluggish economies many companies are looking “afar” for growth and what has helped are these cross-border deals.  You see it daily in just a cursory look at the Wall Street Journal or the Financial Times.  Almost all of these deals require regulatory examination — hence non-English document reviews in many cases.  We’ve been involved in many of these deals because we have a deep bench of multi-lingual attorneys that extends nationwide.  But what is different from the past — especially the IP reviews — is the numbers of foreign language reviewers per project has also become larger, thus creating the need to expand our searches nationally.”  

It is the same in D.C.  Lori DiCesare, President and CEO of Legal Placements, Inc. (LPI) told us:  “In 2010, and again in 2011, we have seen a remarkable surge in foreign language reviews.  This need had been fueled largely by FCPA and other government investigations.   And then the IP work spiked. But because LPI’s staffing team engage in “creative” recruiting to locate the appropriate legal professionals to meet this surge we have staffed a myriad of foreign language reviews across all subject matters.  It can be nerve racking because the non-English language projects seem to require more reviewers of late, but we know the market”. 

And there has been a change in the nature of the work, too 

Yes, a lot more work for contract attorneys fluent in languages other than English, and lots of work for e-discovery companies that handle non-English language document collection, processing and review.   Staffing agencies still handle the largest percentage of foreign language document review.  But e-discovery companies have aggressively moved into this market on their own or by teaming with staffing agencies.   It is why many of the CJK job posts you see on the Posse List are coming from these companies.

And there has been a demand for attorneys versed in arbitration/alternative dispute resolution (“ADR”) projects, especially IP.  This is because businesses mired in IP disputes are increasingly reluctant to expend ever-dwindling resources on protection and enforcement of their IP rights.   E-discovery in ADR is somewhat of a “new new” thing.    A conventional litigation is long and costly, whereas ADR is relatively inexpensive and  fast.  In the U.S. (according to IPWatchDog) the average cost of patent litigation is $2M, trademark litigation is $600K, and other types of IP litigation average between $500K and $800K. This, of course, does not include the price of an appeal, which may add another $2M to patent litigation.   The time involved is possibly more astonishing: the average IP litigation lasts 3 years. Add an additional year for an appeal.   ADR can take as little as 5 or 6 months.  

And there has been growing use of contract attorneys in preliminary IP due diligence:  (i) what IP rights the company owns or uses; (ii) how robust are these rights; and (iii) how unassailable are the company’s claims to these rights.  It is why you have seen so many Posse List job posts requiring IP lawyers at all levels and why we created a national Intellectual Property job listserv wherein we post IP work across the country.   As Jeremy Michalson of Diamond Personnel said (quoted above) the demand for these projects has created the need to expand the search beyond the immediate geographic area of the document review work for appropriate attorneys.  [To join any of our job lists just click here.]

Meanwhile, in Europe …

And this has also led to a surge of in-country litigation and compliance reviews in Europe.  Our sister company Project Counsel has completed 6 document reviews in the past year with 3 more now underway in Brussels, Lisbon, and London covering IP litigation, debt restructuring/due diligence, and M&A work … plus a myriad of specialized legal research and translation projects.    We’ll have a detailed post this Friday on the surge in document review work and other outsourced legal work across Europe and the principal players.

And next week: we start our series on the technology behind the processing and review of foreign language documents — encoding, format, script, language, text analytics, audio, etc. — with our video interviews of the people behind ZyLAB.  

8 April 2011 — We have received a mountain of emails asking about the competing NYSE Euronext deals so we thought we’d provide a summary.

Deutsche Boerse made the first offer.  Under that deal Deutsche Boerse shareholders are set to own 60 percent of the combined company with NYSE Euronext shareholders taking a 40 percent stake. 

In the second offer, NASDAQ OMX Group and ICE would make an outright acquisition of NYSE Euronext. 

NASDAQ OMX has Shearman & Sterling as legal counsel for this transaction and ICE has Sullivan & Cromwell. 

Deutsche Boerse has Linklaters, its longstanding outside counsel.

Wachtell Lipton has the lead attorney role for NYSE Euronext. 

Meanwhile, on the Deutsche Boerse side, Benelux firm Stibbe is advising on corporate issues and Cleary Gottlieb is advising on EU competition issues.

This Deutsche Boerse/NYSE Euronext transaction is more complex because it will require teams devoted to a number of specialties: corporate, antitrust, Hart-Scott-Rodino.   There are lawyers for regulatory, tax matters, and litigation plus separate lawyer teams of similar specialties in Germany and/or Brussels for EU issues.  It all grows exponentially from there. Each of these disciplines will be needed in the other jurisdictions where these businesses operate (France, Holland, Belgium and Portugal, to name a few). 

With cases of this magnitude antitrust counsel will first need to complete the compilation of documents responsive to Item 4(c) of the HSR filing. This is usually the first point of entry for subjective review teams.  For those Posse List members that have worked on large transactions of this sort, you know that clients often assemble 10+ member contract attorney teams to do the 4(c) review.

To refresh your memories, Item 4(c) asks for “… all studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s) … for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets….”   So 4(c) documents may include relatively brief and informal e-mail communications in addition to more formal reports analyzing the proposed merger. 

Consequently, given the necessity of searching a client’s electronic files for 4(c) documents, the 4(c) search often represents the antitrust lawyer’s first opportunity gain a preliminary understanding of the location, volume, nature, and accessibility of the client’s electronic data.

All the firms mentioned above who are handling the antitrust/HSR isssues have assembled “response teams” that will start with the 4(c) and then move on to manage the process of identifying and gathering electronic documents as necessary throughout the merger review process.  

As far as who is involved among the U.S. contract attorney staffing agencies, we have only heard rumors.   And a deal is obviously not close to being set.  But we know a fair amount of work has begun on the European side of the Deutsche Boerse offer via news through our European affiliate.  When we have definitive information, we’ll post it.   But given these days it seems there are too many agencies chasing too little work and there will be a boatload of prime law firms involved in the NYSE Euronext deal no matter who wins, we suspect all 85+ agencies that staff DC/NYC projects will have their snouts in the trough when a final deal moves forward.

For some background on these deals, Deutsche Boerse/NYSE Euronext produced a Powerpoint summary which you can access by clicking here.

For information on the NASDAQ/ICE offer, Nasdaq/ICE also did a Powerpoint  which you can access by clicking here.  

And if you really want get into the nuts & bolts of the Deutsche Börse/New York Stock Exchange agreement and understand the complexity of the matter you can read the 800+ page F-4 filed yesterday by clicking here.  

For some good summaries from the Wall Street Journal click here.

Reported by:  Gregory P. Bufithis, Esq. (with special thanks to Johann Jurgens who is a telecom analyst for a hedge fund and is an advisor to The Posse List on the telecom industry) 

21 March 2011 — Late yesterday AT&T and Deutsche Telekom announced an agreement for the sale of T-Mobile USA for $39 billion in cash and stocks.  It will yield the largest U.S. mobile phone customer base of 130 million users but all commentators agree: the deal will have to pass very tough regulatory review and other closing hurdles before becoming complete.  And the antitrust issues are enormous.  Even the press releases issues by each company said it’ll take them 12+ months to get through all the bureaucracy — if they get through.  In fact AT&T and T-Mobile issued a twenty-eight page PDF to convince regulators that their acquisition wouldn’t violate antitrust law. 

Morgan Stanley acted as lead financial advisor and issued a fairness opinion to the supervisory board of Deutsche Telekom. Deutsche Bank and Credit Suisse acted as financial advisors for Deutsche Telekom. 

Deutsche Telekom was advised by Wachtell, Lipton, Rosen & Katz (the mergers & acquisitions practice group in New York), as well as Cleary Gottlieb and Wiley Rein (antitrust and regulatory law practice groups, Washington D.C.).

Greenhill & Co., J.P. Morgan and Evercore Partners acted as financial advisors and Sullivan & Cromwell LLP (New York), Arnold & Porter (D.C.), and Crowell & Moring (D.C.) provided legal advice to AT&T.

[ CONTRACT ATTORNEY STAFFING AGENCIES: START YOUR ENGINES!! ]

The proposed network merger will create a de facto GSM monopoly within the U.S.  But no worries.  AT&T envisions it as a rosy garden of “straightforward synergies” thanks to a set of “complementary network technologies, spectrum positions and operations.” 

In the event of the deal failing to receive regulatory approval, AT&T will be on the hook for $3 billion to T-Mobile – the breakup fee — along with transferring over some AWS spectrum it doesn’t need for its LTE rollout, and granting T-Mo a roaming agreement at a value agreeable to both parties.  If you do some Google-ing you will find a boatload of technical commentary on the deal. 

The cost to consumers?  It could be significant.  In its press release AT&T pointed to a recent report from the federal Government Accountability Office that said cellular subscription costs fell 50 percent from 1999 and 2009, a period in which the industry has consolidated.  But the reaction was swift.  The New York Times quoted Senator Herb Kohl who heads the subcommittee on antitrust, competition policy and consumers rights who said Sunday night “The explosion of cellphone usage — especially smartphones — makes competition in this market more important than ever as a check against rising costs.  Consumers have borne the brunt of the increasingly concentrated market for mobile phone service”.

AT&T customers, though, could benefit in one notable area: service. Both AT&T and T-Mobile operate on the same technology, known as GSM, so the combination should provide better coverage. That has been a sore point for AT&T, which has been ridiculed over dropped calls and slow data services, especially on Apple’s iPhone.

Our favorite Tweet so far:  “Oh for Jebus’ sake! I left AT&T for T-Mobile and now this??? What have I done to offend thee, Malevolent Overlords?”

The deal has long been anticipated in the telecom community and Sprint (who will fare the worst if such a transaction was completed) had its response locked and loaded, and released shortly after the AT&T and Deutsche Telekom press releases went out.  Quoting in part from the Sprint reaction:

The combination of AT&T and T-Mobile USA, if approved by the Department of Justice (DOJ) and Federal Communications Commission (FCC), would alter dramatically the structure of the communications industry. AT&T and Verizon are already by far the largest wireless providers. A combined AT&T and T-Mobile would be almost three times the size of Sprint, the third largest wireless competitor. If approved, the merger would result in a wireless industry dominated overwhelmingly by two vertically-integrated companies that control almost 80% of the US wireless post-paid market, as well as the availability and price of key inputs such as backhaul and access needed by other wireless companies to compete. The DOJ and the FCC must decide if this transaction is in the best interest of consumers and the US economy overall, and determine if innovation and robust competition would be impacted adversely and by this dramatic change in the structure of the industry. 

We’ll try to report more as the story rolls out, especially if the deal gets to the point of launching subjective document reviews.

7 March 2011 — In case you missed it over the weekend, the New York Times published an article titled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behavior”.   It discussed issues that are not news to us in the market:  the explosion of electronically stored information, the technology used to analyze that data (mentioning Autonomy, Blackstone Discovery, Cataphora and Clearwell Systems) and how all this has disrupted the legal job market (on the heels of the legal sector losing 2,900 jobs in February in the latest report).  

For the full New York Times article click here. 

And as the article rocketed across Twitter, Facebook, JDSupra, etc. over the weekend a number of the leading lights of e-discovery and technology offered their critiques of the article.  Here are just a few: Ralph Losey, Ron Friedmann, Randall Parker and Stephen Levy.

As we have discussed in numerous past posts, the significant impact of this technology has been not on what the New York Times calls the “expensive” lawyers but on those of us in the lowest paid band  -  contract lawyers. 

When we started The Posse List in 2002 our base was contract attorneys, the lawyers who worked on document review and production — the “right side” of the EDRM.   These cases required an army of attorney and paralegal document reviewers — called in like a “posse” at the last minute, as needed.   Law firms adopted the cost-saving manufacturing principle of “just-in-time” production, and applied it to a service industry: hire attorneys “just when you need them” but only on a short-term, part-time basis. 

But as document processing and analysis technology improved, the need for these large numbers dwindled.  But there was an increase in the need for greater sophistication and expertise in ESI management and e-discovery.   Now our members include contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, all manner of e-discovery companies, legal media entities, and numerous legal support professionals.   

The first task in any transition to to understand the technology.  All of us have been exposed to some of the technical hurdles that litigation support teams face, but you need a deeper understanding of them.  One way to do that is learn how data is processed for a case.  We post numerous webinars, webcasts and events on technical training.    

As Ralph Losey says in his critique of the New York Times article, attorneys need to retool.  Quoting Ralph: “The new technologies advancing search and review automation discussed in the story do not replace “expensive lawyers” as alleged. The new software does, however, force lawyers to learn new, more highly skilled tasks. The article seems to overlook the fact that the advanced e-discovery search and review technologies all still require lawyers to operate. They still require skilled attorneys to fit the technologies into a larger legal methodology. They still require the ESI to be understood. The software programs do not run themselves. They are only a tool. They are just a hammer, and without a carpenter, they will not build a case on their own”.

It is why at The Posse List we have been publishing posts which we hope are found helpful such as A lawyer must be a technologist and Transitioning from law practice to more technical litigation support.

You need to grasp the technical challenges that are presented by the data processing process.  Along the same lines, learn about data acquisition and preservation methodologies. You know how important a chain of custody is and why the hash value of the data you present in court needs to match what was initially acquired.  But can you make a bitstream copy of a client’s hard drive with a full audit trail? 

The biggest issue for attorneys making the transition is the need to bridge the gap between legal and technical within e-discovery.   Access our Electronic Reading Room site (click here) to bone up on the basics – and the advanced bits – of e-discovery.

And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda.  Donna Seyle posted an article (you can read it on JDSupra by clicking here) in which she said lawyers must “embrace technology”.  While her article was geared toward the law firm and innovation she addressed the existing situation for all lawyers:  the massively influential rise of social media marketing, blogging, networking, data management, etc. demands it.  And no more so than those of us involved in e-discovery.

It is why we set up two job listservs that post jobs for lawyers needed in various legal technology areas and legal project management (to get on any of our lists go to our home page and click on “Subscribe” in the top right-hand column).

You can do simple things like working your way through the Sedona Conference E-Discovery Glossary (now in its third edition) which is the most comprehensive e-discovery we have found.  It provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.  You can download it for free by clicking here. 

Or look at our weekly “Top 10 … plus more” list of interesting e-discovery blog posts, and vendor views on electronic discovery related issues which provides vendor views and industry news from electronic discovery-centric vendors and commentators (for the latest from both click here).

And go to a legal technology conference near you.  All offer free admission to the exhibit hall (those that have them) where you can meet technology vendors, see the technology at work behind e-discovery, etc.  Many allow free access to students or limited 1-day passes for free admission.  We attend about 15 conferences a year in the U.S., and about 8 in Europe and Asia.  We meet vendors, gain info — and sign up vendors who post jobs on our job lists.  There are conferences all over the country and the world and we post a list every week.

Our membership list is diverse – contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, e-discovery companies, legal media entities, and numerous legal support professionals — and we are trying to be helpful to all of our members.   

26 January 2011 -  We have posted a number of stories on the student debt issue which you can read by clicking here.   Bill McDonald who writes the L4L blog has also been running a series titled “A Student Loan Repayment Toolbox” which you can access by clicking here.

One of the programs he features and which we wrote about last year is the Public Service Loan Forgiveness Program.  It affects a large number of Posse List members who have Federal direct loans.  Quoting from Bill’s blog:

“In 2007, Congress created the Public Service Loan Forgiveness Program, a program specifically designed to provide graduates with more options in planning their careers. The PSLFP rewards lawyers (and other graduates) who pursue careers in public service by discharging the principal and interest remaining due on the borrower’s Federal Direct Loans after the borrower has made 120 monthly payments while working full time in a public service job. In other words, if you devote ten years of your life to public service, and make your student loan payments during that time, your remaining qualifying federal student loans will be forgiven.

“Public service” is fairly broadly defined, and includes working for tax-exempt organizations, prosecutor’s or public defender’s offices, legal advocacy groups, the military, public safety and law enforcement organizations, public schools and libraries, public health care organizations, and the government. The rules for which federal loans qualify for forgiveness are somewhat complicated, and should be reviewed carefully, but in some cases consolidation can be used to bring federal loans that would not have otherwise qualified (particularly loans issued under older programs such as Perkins loans) under the PSLFP umbrella. Also, note that the 120 monthly payments may be made under either a standard repayment plan, an income-based repayment plan, or an income-contingent repayment plan. Using either of the latter two options in conjunction with the PSLFP will provide an even greater overall benefit to the borrower, as more principal and interest will remain outstanding at the end of ten years.

One more benefit from this generous program: while, ordinarily, loan forgiveness is considered a form of income and subject to federal taxation, loans forgiven under the PSLFP are tax-free. All in all, the program goes a long way towards providing attorneys with the room to consider options in public service employment that student debt responsibilities might otherwise have prevented”.

19 January 2011 – A Connecticut state legislator is concerned that the outsourcing of legal work has taken jobs away from recent law school grads and introduced a bill to address the “doc review” situation.  Under her proposal “unlicensed” offshore workers who engage in the drafting, reviewing or analyzing of legal documents for clients in Connecticut could be charged with unauthorized practice of law.

The general consensus is that overseas legal work is here to stay.   But not everyone is happy about the legal outsourcing trend.   Well, duh.   Scott Bullock, a contract lawyer who has blogged about the woeful economics of non-big-firm practice, prertty much sums it up:  “It’s just preposterous that we have to go to an American law school and pass a bar exam and then see our jobs shipped overseas. Why even require people to go to law school?”

For full article from The Connecticut Law Tribune click here.

5 January 2011  - Many legal pundits have repeatedly called for teaching e-discovery at law schools.  No one in the e-discovery world can miss what the digital information revolution has done to dramatically alter the discovery process.  Nobody has beat this drum more loudly than Ralph Losey, a reigning e-discovery guru (click here).

But if you don’t want to wait for your law school  …. or you are well beyond your law school years but need to catch-up on e-discovery … Ralph Losey has come upon the answer.  Ralph is launching a new online mass collaborative e-discovery program and The Posse List is assisting to spearhead the effort.

We are not providing academic credit or certification (but some state CLE accreditation for practicing lawyers may come later; Ralph’s working on it).  The judges’ panel at the recent Georgetown Law Advanced E-Discovery Institute discussed how superfluous subject-matter certification would be.  They preferred well-grounded CLEs and training programs. 

Ralph’s e-Discovery Team program is just that, but it’s online. You study at your own time, your own place, your own pace.  The instruction includes videos from the judges who make the law (including Judge Ron Hedges, Judge Paul Grim, Judge John Facciola, Judge  David Waxse) and the lawyers who write about e-discovery everyday (Craig Ball, Jason R Baron, Steven Gensler, George Socha, Ken Withers) … just to name a few. 

What’s covered?  Everything, from Sedona to the EDRM, and the thoughts and opinions of almost all of the leading industry experts and judges. It is a basic level course, for lawyers and students alike, almost identical to the online course Ralph taught in law school this summer.   

The online course consists of sixty-one classes, called modules, and covers all key topics in electronic discovery law.  Each module takes an average of thirty to forty minutes to complete and has assignments of from one to two hours each, depending on how long the reading and research takes you. In addition, several top e-discovery vendors will soon offer supplemental instructional programs, demos, and exercises designed exclusively for the program. 

And you will have different levels to choose from so that you can elect to have a version with or without an online expert-professor interaction.  Fees will range from zero (the first quarter is free without professor interaction, so that you can try it without risk), to $1,500 for the full program. 

We’ll have a detailed post after the first of year with all the details on the levels and specific costs, the detailed syllabus, how to sign up, the special Posse List registration code, etc.

We hope it has been a good holiday season for all.

We grew to 26,000+ members in 2010.  When we started The Posse List in 2002 our base was contract attorneys, the lawyers who work on document review and production — the “right side” of the EDRM.   These still constitute the largest part of our membership base.   We add 25-30 new such members every week.  But in percentage terms our fastest growing segment has been outside the contract attorney base:  forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, e-discovery companies, legal media entities, and numerous legal support professionals.   So it has been a little tough at times to please such a diverse audience. 

For many of our contract attorney members it has been a tough year.   They are dealing with continued repercussions from the financial melt-down, and the tectonic shift in the legal industry.   “Temp is the new perm” has been written about extensively in the past year (see one of our previous posts on the subject by clicking here).

And 2010 saw extensive discussion/coverage/debate about automated document review vis-a-vis human-assisted search.  We’ll address this issue in more detail in 2011 but we’d like to bring your attention to two recent articles:

*   “Human-Assisted Computer Search in EDD” by Jason Krause of Law Technology News (click here)

*    “Reinventing Review in Electronic Discovery” by Venkat Rangan of Clearwell Systems (click here)

We’ll try not to bore you with trends/predictions for 2011 (but don’t miss our ”must read” predictions for 2011 ..click here).   Here are some things we have in store for 2011, and things likely to continue in 2011:

1.  We are going to be working with Ralph Losey in the launch of his new online mass collaborative e-discovery program.  We’ll have a detailed post next month but for some preliminaries click here.

2.   Our job lists will continue to expand, as will the diversity in our job posts.   We have linked up with several new companies and job sources for 2011.   And we’ll be expanding job posts for returning Vets and ex-military Posse List members.  In 2010 our job postings had widened due to the increasing trend of attorneys straight out of law school (or with a level of substantive experience under his/her belt) who have decided to pursue other ventures, be it a solo practice or a business outside of the practice of law.   Much of this is due to a trend we (and others) have discussed:  the unbundling of legal services.  Stephanie Kimbro provides a nice overview on what this is about (click here).  

3.  We’ll have a continued focus on the lawyer as technologist (see our recent post by clicking here) which is the reason behind our link-up with Ralph Losey as described above.  As we have discussed over at our sister site The Electronic Discovery Reading Room  in our e-discovery and legal technology events coverage, one of the ways you can learn about e-discovery and all the technology out there is by going to a conference near you.   Most offer free admission to the exhibit hall (those that have exhibit halls) where you can meet technology vendors, collect information, see the technology at work behind e-discovery, etc.   We’ll be providing information on free exhibit hall passes for Posse List members for LegalTech2011 which is in NYC at the end of next month. 

We believe all our members can reposition themselves and obtain something better than document review (if that is your choice) in the e-discovery market, or reposition themselves to find more creative ways to raise their profiles and make contacts.  And for some very helpful advice read Paul Easton’s post “Transitioning from Document Review to E-discovery Project Management” (click here).

In spite of all the challenges you think you face in trying to hit the “exit” button and get of contract legal work, be comforted by the fact that scores of Posse List members are doing it, and successfully.   The best news:  we are working in a part of the legal industry that is unusual because it is open to sharing and collaboration, through publications, quality conferences, and trade shows, and peer networking organizations.

And we will continue to do what we can to help.  A Happy New Year to all, and we sincerely appreciate your support and feedback.