The Association of Corporate Counsel (ACC) 2009 conference was held last week in Boston. We had many discussions with corporate lawyers over the week. Undoubtedly, the strongest theme to emerge was the concern over litigation costs.
According to the people that we spoke with, this concern results from the combination of two key factors – firstly, the ever-growing costs of litigation, driven mainly by the exponentially-growing volumes of information; and, secondly, the economic discipline imposed on corporations following the global financial crisis.
This is what people were saying at the conference:
1. Corporate counsel are very concerned with litigation costs, so they are becoming much more involved in e-discovery
Once the undisputed domain of law firms with e-discovery savvy, corporate counsel now recognize that such a major cost center cannot be the left as the exclusive domain of law firms. The billable hour may not yet be dead (as rumors may have it), but corporations now clearly recognize that the use of appropriate use of e-discovery techniques and technologies can dramatically reduce litigation review volumes and, as a direct consequence, billable hour costs.
2. Corporate counsel are very concerned with litigation costs, so they are actively educating themselves in e-discovery
Corporate counsel feel that their lack of knowledge of the emerging e-discovery space was forcing them to cede control of this cost-intensive process to their vendors, the law firms and service providers. The popularity of the e-discovery sessions at ACC seems to indicate that corporate legal departments are highly motivated to bridge this costly knowledge gap.
3. Corporate counsel are very concerned with litigation costs, so they are trying to manage their exposure
Early case assessment was a catch-cry at the conference, but everyone has a different view of it. That being said, everyone we spoke with agreed that, given the corporation's exposure, the corporate legal department is obliged to manage the company's risk and cost of e-discovery. This involves getting an early grip on the case to answer questions like:
- What is the chance we can win the case?
- Should we settle?
- How much is at stake?
- What are our key claims and arguments?
- How many documents are there to review? What's the expected cost of litigation?
4. Corporate counsel are very concerned with litigation costs, so they are actively exploring innovative new techniques and technologies
Collection and forensics tools are a necessary baseline for early case assessment. Agreement on this seems to be universal. However, some (but not all) corporations now understand that this is only the baseline, and that the ability to deliver on the early case assessment vision will depend on analytical capabilities. They know how much is at stake, and are actively looking for technologies that can address this need.
5. Corporate counsel are very concerned with litigation costs, so they are engaging with law firms in old-new ways
It would be interesting to subject this to formal content analysis. In talking about their work with outside counsel, corporate legal departments are in the process of adopting a whole new language. At the show, we heard lots of talk about "value for money", "budget limits", "competitive pricing", and "cost controls". By the way, we are also hearing the mirror image of this from law firms. These concepts are the foundation stone of modern business, but they are very new in the litigation space.
For more on all of this, download Conrad Jacoby's white paper on managing litigation review budgets. | 
