“The playing commences at the lower right hand corner designated ‘Go’” – Darrow, Charles (assignor to Parker Brothers, Inc.). Board Game Apparatus. U.S. Patent 2,026,082. Issued Dec. 31, 1935

At least when you’re playing Monopoly, it is easy to know how to begin. Select your token, place it on the corner space marked “Go,” roll your dice, and you are off!

Introducing innovation into existing litigation response efforts usually lacks such a clear entry point. Often, litigation managers know when they want to try something new: to achieve spend control, to enhance efficiencies, or to better leverage emerging technologies.

It can be a profound challenge, however, to get from “wanting to try something new” to “actually doing something new.” That’s why we are exploring this (often under-discussed) aspect of litigation innovation – how do you actually find a starting point, and what are the common barriers standing in the way.

What Fits Under the Scope of 'Litigation Innovation'?

In the world of managing complex litigation matters, most everything comes back to a few clear objectives: manage the matter, or portfolio of matters, to the best possible result while minimizing organizational risk, burden, and spend. At its heart, innovation is just trying something new that will hopefully get you better results – or at least get you similar results while meeting the aforementioned objectives.

For litigation management, innovation often sits in three key places. First is through introducing new outside counsel selection and management strategies. Everything from introducing new firms and lawyers to alternative fee agreements to “virtual firm” structures can be properly classified as an innovative action.

The next area of litigation innovation are the internal and external partners, workflows, and technologies that support managing eDiscovery efforts – especially those for matters involving voluminous data sets. Often, this area is right behind outside counsel in terms of external spend. Because of its complex and ever-changing technical nature (and its usually complicated fee structures), discovery can be particularly ripe for exploration of new approaches.

The third core area for litigation innovation centers around building more efficient collaboration across internal and external matter teams or across teams handling related matters. These innovation efforts are often very technology and process-focused – covering everything from consistencies in privilege designation to efficient knowledge management in order to reduce business burdens through coordinated scheduling, etc.

While the substance of how organizations are exploring innovation in each of these areas is worthy of extensive deep dives, for today’s sake, this at least gives a flavor of what organizations are trying to do before discussing how to start.

Getting From 'No' to 'Go'

No matter the type of potential litigation innovation effort, there is often a large chorus pleading for the status quo:

  • “Let’s keep things how they are now.”
  • “How about we try that on someone else’s matter?”
  • “How about next year?”

Here are some common barriers to innovation and a few starting points for how to overcome them:

Change Has a Cost, and Benefits Are Tough to Measure

Organizations may not have much appetite to incur any near-term spend, even if it is expected to pay back dividends in upcoming months and years. For many, this is the single greatest (and most legitimate) barrier to exploring anything that is not immediately self-funding.

This objection is best managed through organizational long-term planning. It is much easier to allocate dedicated budgets for innovation activities outside of a specific matter budget. This ensures that promising avenues that may have a dramatic long-term impact on legal department spend can be explored without always needing to be self-funded. Of course, this requires organizational alignment while also mandating that innovation projects be carefully designed to understand and closely track impacts on matter and long-term budgeting.

For those innovations that are tied to reducing risks and burdens, there still needs to be a concerted effort to measure results and provide feedback loops so that an organization can sustain innovation while meeting matter objectives.

Change Is a Distraction/Risk

Litigation management is, on the best days, incredibly complex – requiring many related teams and processes to work in sync within challenging timelines. If not properly managed, introducing change can be a profound distraction, even if it is achieving its stated goals.

Beyond being a mere distraction, poorly implemented innovation efforts can affect counsel’s ability to litigate the matter or even impact the defensibility of an organization’s discovery outputs. Some outside counsel will bluntly state that “you hired us, and you need to let us do things our way,” implying that they are not responsible for outcomes if they are not in agreement with the proposed innovation.

This objection can get at the heart of a thorny challenge – does your organization properly value flexibility and innovation as traits of your key external partners? If you do not select outside counsel and vendors, at least in part, for their ability to not just survive but thrive while trying new approaches, you may face a real barrier to success. At minimum, you should carefully consider who is most comfortable with your innovation strategies and methods before imposing changes on a partner that cannot effectively operate outside of the status quo.

In the long run, you will find most firms (and lawyers) will fall on a broad continuum of comfort with maintaining excellent service while also supporting innovation. Careful planning during partner selection will be the best path to mitigating the possibility of increased distractions or risks during these changes.

Another method to overcome this challenge is to diagram all external and internal players that must be aligned to support the innovation. Doing this task before initiating the change can play a critical role in both mitigating risk while also building a diverse set of ‘change champions’ across internal and external teams. These champions can take pride and derive independent value and recognition from the efficient introduction of innovation into litigation processes.

Passing 'Go'

The idea of introducing fundamental changes into something as complex (and generally risk-adverse) as litigation management can cause countless sleepless nights. Once you overcome some of the initial barriers, however, the long-term dividends certainly pay off. Just like in Monopoly, there is no payout for leaving “Go,” but as time goes on and you move around the board with matters, eventually, you will pass “Go” again and collect $200. Except in the world of litigation management, the long-term benefits of initiating and utilizing innovation far exceed the reward of play money. 

Andy Cosgrove

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Andy Cosgrove is the Chief Strategy Officer of TCDI. He is responsible for guiding the development of innovative technologies and strategies that enable TCDI clients to mitigate legal risks and minimize costs in the areas of eDiscovery, information governance, cybersecurity and data privacy.

Andy brings over 20 years of experience as both outside counsel at AmLaw 100 law firms and, most recently, as in-house managing counsel leading information governance and eDiscovery teams at Juul Labs and General Motors. Learn more about Andy.