Document Review – the legal profession’s dirtiest secret (aka – the Legal La Brea Tar Pit)

I went to a law school with decent standings and a good reputation. As with all law schools, we had free lunches and presentations by various attorneys touting career pathways and as always the odd shill trying to sell something. What I never heard once from law school was about document review. The only way you hear about it is from other people who have been mired in the worst position law has to offer.

For the uninitiated, I’ll give you a short(-ish) primer. First off, you never call document review ‘document review’ on your resume… it is Contract Attorney. It makes it sound almost legitimate. It is almost without fail an hourly position, whether it is in-house at a law firm or contracted out through the big clearinghouses of document review (eg. Special Counsel [the legal hiring wing of Adecco temp services]; or Hudson Legal). Law firms do technically hire a salaried contract attorney position (E-DAT attorney), but it is as the lowest level minion associate who will spend his days looking over the product of the hourly document reviewers, and often managing them. One of the lies the headhunters use trying to get document reviewers is to tell people that in some long ago forgotten time there was this one guy, we think, who worked in document review for a law firm and they liked his work and hired him as an associate. Do not believe them. Tattoo it like in Memento somewhere on your body or maybe the back of your eyelids so you never forget… they are lying to you. There is no promotion potential because any law firm that smells the heady stink of document review about you will pass over you faster than your resume through their shredder.

Anyway… although they would prefer that you have passed the bar, sometimes they are happy to hire you if you only have a JD. You see the work you will be doing is mind-numbingly repetitive, monotonous, and imbecilic… so no bar is needed. The oft given reason for wanting the document reviewers to have passed the bar is to ‘make sure privilege is maintained’. You will also hear the odd story here and there of someone who managed to lie about being an attorney and working as a doc reviewer because the clearinghouses don’t all check credentials (the crap stories told by doc reviewers about their jobs are usually all true). Why would someone lie? Well it beats working at McDonalds, but the mental effort required is the same. As a doc reviewer you can make anywhere between $25 – $75 an hour depending on what part of the country you live in, and whether you natively speak some very obscure language. Unless you natively speak Urdu, you will be making about $25 an hour.

Usually the documents you are looking at involve a single suit between 2 (or more) larger companies that have a lot of money. One side initiates discovery, which causes the other side to send around a paralegal minion to collect every scrap of paper produced by the company in the last X years and duplicate everyone’s hard drive and email. This then goes to a scanning company who puts it up into a huge database of potentially millions of pages of information. You as one of the faceless document reviewers get to go through those million pages one by one to determine if there is anything in them that is relevant to the hasty description of the case you hear on day 1 of the project. At the end of this, it gets turned over to the other side… who in turn hire document reviewers to go through the documents to see if there is anything relevant to the case as they see it, they then do the same for their discoverable papers and turn those over to the other side who then also has to look through those. Confused yet? Think of it sorta like your favorite episode of Law and Order when the evil corporation tried to drown Jack McCoy in discovery paperwork and it shows his whole office filled with file boxes. Now multiply that a hundred fold to the point that it could fill a mid-sized warehouse and you have an idea as to the scope of it.

So I’ve been sidestepping what you actually DO for document review… Generally you sit in front of a computer. A program of varying user unfriendliness with the worst GUI you will ever see will pull up a crudely scanned image of some piece of paper turned over in discovery. You will use all the knowledge you have garnered through countless hours of law school classes to look at that email saying “hey Bob.. how about lunch tomorrow?” and determine if it is a relevant document. Now this is somewhat simplified, more often you will end up looking at daily sales numbers of an individual widget repeated over and over for the last 10 years. It amounts to roughly the same thing for our purposes here, and you will also still see the ‘Lets Have Lunch’ emails regardless. If it is potentially relevant, you then have to decide HOW it MIGHT be relevant and whether it MIGHT be privileged. And you can only describe your opinion for this through a very limited number of check boxes with helpful descriptions like “Sales pre-purchase order”.

So, you’re thinking to yourself, “sounds boring but it doesn’t sound horrible”. Well, we haven’t hit why it is really so horrible just yet. You see, document review is not so much a real discovery technique as it is a delaying tactic to try to cost the other side as much money as possible. And all sides involved know this. If you remember back to your Civil Procedure, ‘difficult’ discovery costs are shared equally by both sides. So the more money you can throw at the problem, the more money the other side is also required to throw at it. For a huge company, flushing 10 million on a discovery that produces nothing means the other sideĀ  has to reimburse you 5 million; which could easily bankrupt small companies… unless of course the other side also flushes away 10 million on their side of discovery, in which case they don’t have to pay you back anything. It becomes a game of brinkmanship.

But that is the macro scale, why is it so bad on the micro scale? The corporation is paying the law firm, who is paying the Clearinghouse, who is paying the document reviewers for the E-Discovery. (Sidenote: consider the markup to the corporation for 1 hour of E-discovery in this situation). Well, we all must keep up appearances of respectability to the court that we are doing something legitimate, so something must be produced. The law firm will have 2 different instructions for a given E-discovery, the one they give the Document Reviewers explaining what is relevant, and the one they give to the E-DAT managing associate of the discovery for how they would like the aggregate results to end up. What this means is that the law firm already knows how they want the results to look before looking at the documents… and it is the responsibility of the E-DAT attorney to wrangle the document reviewers to produce something which resembles this fiction. So even if every document is irrelevant, if the firm wants to bury the other side in paperwork, the E-DAT attorney will tell the document reviewers they need to find the documents they are looking at more relevant… or you’re fired.

Oh, I forgot to mention that. Document Review takes a page from the Japanese style of management book… everything is couched in the terms “or you’re fired”. Show up on the weekend, work on Christmas, work a minimum 60+ hour week with no overtime pay, you are taking a lunch break when other coworkers eat at their desk, no talking, no phone calls, no music players… basically you should consider yourself to be flexible furniture that the company owns. You are also timed, and every metric about what you are doing is recorded and looked over every night. If your numbers are down, much like in Office Space, you will have 3 managers you never knew you had come over to talk to you about it. And then threaten to fire you if you don’t improve.

I know you think this is hyperbole. It is not.

Anyone who is happy with these positions is someone who should never have become an attorney in the first place. This is also the dumping ground of the 3rd and 4th tier law graduates, sad but true. Easily 9 out of 10 are from lower tier schools. Consider what your future holds before blindly accepting your admission. I am sure I will write more on E-Discovery later… but I am too depressed to continue at the moment.

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