Attorney review, a crucial step in many legal and business processes (especially eDiscovery), is vital for ensuring compliance, accuracy, and defensibility. However, several things can go wrong, leading to delays, increased costs, and even legal repercussions. This guide explores potential pitfalls and offers strategies for mitigation.
What is Attorney Review?
Before diving into the problems, let's briefly define attorney review. It's the process where a lawyer (or a team of lawyers) examines documents, communications, or other data to assess their relevance, privilege, and potential use in litigation or other legal proceedings. This meticulous process ensures compliance with legal and ethical obligations, protecting client confidentiality and preventing the disclosure of sensitive information.
Potential Problems in Attorney Review:
This section addresses common issues that can arise during attorney review.
1. Inadequate Technology and Workflow:
What can go wrong? Using outdated or inadequate technology can significantly hinder the efficiency and accuracy of attorney review. This includes insufficient software capabilities, lack of proper data management, and inefficient workflows. Problems such as slow processing times, difficulty in searching and filtering data, and inadequate collaboration tools can lead to delays and increased costs.
Mitigation: Invest in robust eDiscovery software with advanced search functionality, robust data management capabilities, and seamless team collaboration tools. Implement well-defined workflows and processes to ensure efficient handling of the review process.
2. Insufficient Training and Expertise:
What can go wrong? Review teams lacking sufficient training or experience can misinterpret documents, overlook relevant information, or incorrectly apply legal privileges. This can have serious consequences, including the accidental disclosure of privileged information or the failure to identify crucial evidence.
Mitigation: Provide thorough training to review teams on relevant legal concepts, the use of review software, and the specific requirements of the case. Engage experienced legal professionals to oversee the process and ensure accuracy.
3. Inconsistent Application of Review Protocols:
What can go wrong? Inconsistencies in applying review protocols and guidelines across the review team can lead to errors and biases. Different reviewers interpreting the same criteria differently can result in an inconsistent and unreliable final product.
Mitigation: Develop clear, concise, and unambiguous review guidelines and protocols. Implement quality control measures, such as regular audits and cross-checks, to ensure consistent application of these protocols. Employ standardized coding schemes and maintain detailed records of review decisions.
4. Data Volume and Complexity:
What can go wrong? Handling massive datasets or highly complex data can overwhelm even the most experienced review teams. This can lead to human error, missed deadlines, and significant cost overruns.
Mitigation: Employ technology that facilitates efficient data processing, such as predictive coding or technology-assisted review (TAR). Break down large datasets into smaller, manageable chunks, and prioritize review based on relevance and importance.
5. Inadequate Communication and Collaboration:
What can go wrong? Poor communication between the review team, legal counsel, and other stakeholders can lead to misunderstandings, duplicated efforts, and delays. Lack of collaboration can also hinder efficient decision-making.
Mitigation: Establish clear communication channels and protocols. Regular meetings and updates should be scheduled to ensure all stakeholders are informed and aligned. Utilize collaboration tools to facilitate seamless sharing of information and efficient teamwork.
6. Failure to Identify and Handle Privileged Information:
What can go wrong? Failing to properly identify and handle privileged information (attorney-client privilege, work product doctrine) is a serious legal risk. Accidental disclosure of privileged information can damage a case and lead to sanctions.
Mitigation: Implement robust procedures for identifying and handling privileged information. Utilize technology that facilitates privilege review and ensures that privileged documents are properly redacted or withheld. Train review teams on the nuances of privilege law and the appropriate protocols for handling privileged materials.
7. Lack of Proper Documentation and Audit Trails:
What can go wrong? Insufficient documentation of the review process, including decisions made, protocols applied, and data handled, can expose the process to challenges and scrutiny. Lack of transparency can also lead to disputes and accusations of bias.
Mitigation: Maintain detailed records of all aspects of the attorney review process. Document all decisions, actions taken, and any exceptions made. Ensure that an auditable trail is maintained throughout the entire process.
By understanding and addressing these potential problems, legal professionals can significantly improve the efficiency, accuracy, and defensibility of their attorney review processes. Proactive planning, robust technology, and well-trained personnel are crucial to ensuring a successful outcome.
