As the legal industry continues to evolve so do the demands and needs of law firms’ internal and external clients. Like many other support functions, litigation support is an area that historically supported one primary business need (i.e., managing e-Discovery), but the role of the service is transitioning due to market changes. Today, law firms are revisiting litigation support services and strategies to account for evolving e-Discovery provider business models, increasingly sophisticated corporate client sourcing arrangements, rising technology and infrastructure costs and decreasing litigation support revenues.

In our ongoing advisory work with law firm clients, we have identified the following emerging trends in litigation support:

• Growing gap between attorney needs and the perception of internal litigation support services. Today, needs relating to electronic evidence surface much earlier in matters due to the early disclosure requirements of the Federal Rules of Civil Procedure (FRCP). However, we often hear from litigation support personnel and discovery counsel that they are consulted too late in the matter hindering their ability to add additional value to the process. If brought in earlier by the case team, litigation support experts can add value by supporting the negotiations with opposing parties, or by guiding clients regarding litigation holds and data collections. Many attorneys are uncertain where to find assistance for legal e-Discovery questions beyond technical or database-related support issues.
• Missed revenue opportunities for law firms due to outdated pricing models. While corporate clients are familiar with unit-based pricing models, law firms have mostly held to hourly services models for e-Discovery services (with the exception of data hosting fees). More law firms are shifting the pricing model to be consistent with the other providers to align with clients’ desire to gather comparable metrics across providers while minimizing the barriers to fee recovery by the law firm.
• Lack of awareness and expertise is leading to decreased adoption of internal litigation support services. Attorneys often report using third-party service providers because they are more familiar with the capabilities and services offered by the external providers. This may be a result of prior relationship if attorneys are new to a firm or simply lack of awareness of the breadth of services and skills within the firm.
• Increased reliance on third-party vendors to avoid addressing cost sensitivity issues related to managing e-Discovery. Through our client work and surveying of over 600 attorneys we have found that attorneys have the least confidence in:

  
  

  1. understanding and articulating the services litigation support provides to clients, and

  2. explaining and defending the fees for litigation support services. Human nature compels people to avoid uncomfortable circumstances and in this instance, using an external provider and “passing through” invoices is the path of least resistance.

• Uncertain governance can hinder success. Litigation support spans technology offerings and professional services in both client-facing and technical roles. Traditionally, litigation support teams have been organizationally placed within IT, practice support or litigation. Litigation support teams that are aligned to the same leadership as the attorneys they support are better positioned for success.

The maturity of the e-Discovery domain brings opportunity, as well as heightened expectations for handling and analyzing a client’s electronic evidence. Judicial and client expectations have never been higher. Cost pressures, innovative technologies, evolving legal requirements and competition from client-procured vendors are challenging law firms to chart a new course for litigation support as a service offering.

Forward-thinking law firms are reshaping their strategy, operating model, technology and skill composition of litigation support to align with the evolving business needs with a focus on enabling attorneys to provide sophisticated analysis of electronic evidence. Shifting the emphasis away from commoditized services to perceived high-value expertise allows law firms to reposition its pricing model in a way that generates compensation consistent with the risk assumed and the value of the services provided.

To learn more about how to define a new strategy and operating model for your litigation support department, contact Bobbi Basile at bbasile@hbrconsulting.com or Shay Hanson at shanson@hbronsulting.com.