According to the Association of Corporate Counsel, “[m]apping a business process is a simple, orderly and powerful way to identify and describe each step that takes place in a business process. Process mapping helps you to see through the complexity of organization structures…focus on the activities that are potentially generating legal risks…[and]…develop effective prevention solutions.” In February 2013, The Cowen Group facilitated two interactive webinars with our New New Leaders and Think Tank Advisory Board focused on applying legal process mapping to discovery workflows and the impact these efforts have on cost savings, efficiencies, and effectiveness. We were joined by panelists from leading law firms and corporations including Reed Smith, Morgan Lewis, Seyfarth Shaw, Fish & Richardson, and Fidelity Investments who are utilizing process mapping as a part of an overall project management or efficiency strategy to gain a competitive advantage for their organizations.
What Is Process Mapping and How Does it Apply to eDiscovery?
As defined by Tom Baldwin, CKO at Reed Smith, process mapping is a planning method that graphically conveys a given type of work, capturing all the components of a workflow and breaking down tasks, roles, timeframes, and know-how (precedents, forms and guidance) into their most basic levels. The picture of the now-familiar eDiscovery Reference Model is in essence a process map depicting the flow of a discovery matter at its highest level. Each phase
then gets broken down into less complex activities until the actual tasks necessary to complete an ESI production are each defined as an activity (a box) in the workflow.
These boxes can include the most optimal resource to do each task, alternative resources, the length of time each task should take, billing codes and any additional information.
Some may think that defining and visually representing a workflow at this level of detail is a wasted effort. After all, every experienced litigation support project manager knows how to run an ESI production. However, as one of our favorite TCG books, The Checklist Manifesto spells out in great detail taking the time to think about, reach consensus on, assign responsibility for, and memorialize on paper minute details of complex functions performed in high pressure situations, such as surgery and aviation, saves lives. Litigation support is no different—the contentious nature of our litigation system, roller coaster timeframes, compressed deadlines, amounts of data, and complexity of technology add up to a perfect storm that almost guarantees a step will be missed or skipped along the way, causing errors and thereby costing more in terms of time and money. Outlining and documenting an agreed-upon process allows less room for error and more importantly, if an error occurs, allows teams to go back and analyze where the process may have failed or needs improvement. These “after-action reviews,” in project management terms, serve as educational moments for case teams and allows for a continued refinement and evolution of the eDiscovery effort. This leads to greater increases in efficiency and cost trimming.
The Benefits of Process Mapping
Process mapping doesn’t only has preventative benefits such as keeping a rushed team from skipping a step to save time. It also has proactive benefits such as better-defined allocation of resources and a more accurate prediction of costs and pricing.
In an era when law firms are taking more risk upon themselves to perform work under alternative fee agreements (AFAs), having a process that depicts which level of employee should perform a specific task, how much time it should take based on certain parameters, and their bill rates can help organizations reach a challenging goal, determining the actual cost and price of an eDiscovery project. From then on, a model can be tweaked to identify tasks where less expensive resources could be utilized, reducing costs for a corporate client and increasing profit margins for law firms. These cost savings can then be transformed into marketing advantages helping firms win more business. As stated by Rose Battaglia, Global COO of Legal and Compliance at Deutsche Bank, “[t]hose law firms that have better processes for mapping workflow…will be able to rise above the firms resistant to change. These firms will be able to offer a more competitive price and not need to compromise quality.”
Process mapping also helps organizations perform in-matter review, preventing scope creep by determining how a matter is progressing against the budget and limiting the need for “fire drills” by identifying which tasks are completed or still outstanding throughout the life of a project. This works for both the client and the firm, increasing satisfaction, improving predictability and consistency, improving communications, increasing a firm’s realization, and better managing risk.
In fact, Jessica Robinson, Director of eData Practice Support at Morgan Lewis and adjunct professor at Georgetown’s Center for Business and Continuing Education, sees process mapping as an integral component to what she defines as “extreme project management.” In Ms. Robinson’s estimate, parameters can change so quickly and so frequently in a litigation (number of custodians, amount of data, timeframe to produce, even what is considered relevant evidence), that the best way to respond quickly, efficiently, and effectively is to have a well-defined map of where you are going in the first place. Or to put it in laymen’s terms: you won’t have the ability to detour around a 2-hour traffic accident delay on Interstate 65 using state routes unless you start with a map of the area, your planned route, and connecting roads. Dave Cohen, a Partner at Reed Smith, agrees, seeing two of the major benefits to process mapping as a tool that allows for analysis and further customizing of the “standard” process to meet any unique matter needs or the expansion of the process to cover new types of situations that arise.
Analysis of process and identification of efficiencies and time savings can be quite beneficial to corporate legal departments as well—especially for organizations with an active litigation portfolio. Martha Mazzone, Vice President and Associate General Counsel at Fidelity Investments, led the effort to map her organization’s eDiscovery processes, uncovering a number of redundancies, time-sucks, and manually intensive phases of a discovery matter. By redefining and streamlining these processes, including the order of activities and assignment of roles and responsibilities, Ms. Mazzone was able to eliminate duplicative efforts between her general counsel’s office and outside counsel, automate some previously labor-intensive tasks, and work around/reorder steps that took inordinate amounts of time. Her efforts resulted in impressive efficiencies and significant reduction of eDiscovery expenses. In addition, the transformation of the eDiscovery function has played an important role in inspiring innovation and creativity in other members of the legal department. They are looking at other areas where they could realize efficiencies through better management, including mapping their legal billing process.
Impact on Careers: eDiscovery and Beyond—The Role of the Process Manager
In his widely-read bestseller, The End of Lawyers, Richard Susskind outlines four business models for future business practices. Both “The Glazed Doughnut” and “The Cog” refer to an evolving career opportunity for process managers or process analysts who are responsible for process deconstruction, project management, and liaising between the organization’s expert trusted advisors and enhanced practitioners and either internal or external routine workers (reviewers and staff attorneys). As all of our thought leaders demonstrated in our discussions, leaders in the eDiscovery and knowledge management space can truly define a niche for themselves, helping their firms achieve client goals and spreading litigation support’s efforts with process mapping to other areas of the practice. As Susskind states, “Who, in the future, will take on the responsibility for legal process management (process analysis and project management)? This is a fascinating question, upon which the future health of the legal profession may in part depend.” This appears to be an evolving role in which today’s litigation support managers and directors can excel and succeed as true value-adds to their clients and law firms.