In all of the recent discussion about creating a certification for Litigation Support professionals to measure their proficiency in working with electronic discovery, I’ve always felt a strong push against the idea, but could never really articulate what about it bothered me.
Today, in reading Chris Dale’s blog post about it, it clicked for me. Here’s the relevant part to this discussion, but you should go read all of it, and the post he links to that started this conversation as well.
My own contribution to the article goes more to the distinction between education and the need for a piece of paper to show that you have been educated. I see it as a costly barrier to entry in an area which needs recruits (nursing is the obvious parallel in the UK) and as something which aims at the wrong target. It is not the litigation support people whose actions or inaction cause the problems, but the lawyers.
I’ve seen Chris write about it being a barrier to entry and thought that, while I see his point, and it’s something that will need to be addressed, it didn’t quite hit me where my gut was on this, but the second part of this paragraph definitely does.
Here’s the situation as I see it. There are folks who work in this industry who want to be taken seriously by the rest of the legal industry. Of course, other areas of the legal industry have certifications, so we should have one too. Let’s put together an ediscovery certification to prove that we’re experts in this new and exciting area.
There’s just a couple of problems with that. Chris points out the first one, many times in a law firm, it’s not the Lit Support folks who are advising clients on collection, or writing ediscovery requests, it’s the lawyers. Yes, in a perfect world they are including the Litigation Support folks in that process, but we are far from a perfect world. The real world contains plenty of lawyers who don’t actually know enough about ediscovery to even realize they should be looking for technical expertise. Having a certified ediscovery person working in Litigation Support doesn’t mean anything if the lawyer above them is clueless about ediscovery and doesn’t get them involved. From a clients perspective who do you want to deal with, the outside firm that has a Litigation Support person who’s certified, or the firm that has an attorney who’s an ediscovery expert? It’s the attorney who’s going to be appearing at conferences, writing your requests and responding to requests, advising you on proper collection, representing you to the court, etc. The Litigation Support folks may have some input into these things, but I know which one of the two I’d want to be an expert! Unfortunately, the push for certification seems mostly to be aimed at the Litigation Support people, which is not where it will have the most impact.
The second thing the post brought to mind, for me, is that ediscovery is not the end-all be-all of working in Litigation Support. In fact, how much of the day-to-day work is dealing with ediscovery can be very, very different from law firm to law firm, or between different corporate law departments. In some firms, a litigation paralegal might be much more involved with helping the attorney with case management, and the Lit Support folks may do the heavy technical lifting, while in other firms, it’s the Litigation Support folks who are doing the work with ediscovery strategy while the paralegal works on more administrative things, and the IT department does more of the heavy lifting in terms of handling data. It’s not a one-size fits all discipline. I know, speaking for myself, that while I do deal with handling ediscovery and getting it into review platforms and production sets put together to send to opposing sides, etc. that its not the only thing I need to know about to do my job well. My job also involves quite a bit of technical work with Excel, Acrobat, Powerpoint, etc. I do a fair amount of training, and internal marketing. I work with video and audio files, I put together presentations and setup presentation equipment. Being a certified ediscovery expert doesn’t guarantee that I’d be any good at any of these other things, which are still very much part of my job as a Litigation Support Pro. Other people in this industry are responsible for some of the same things I am, and some are responsible for doing things like programming, that I don’t do at all. It’s a real mixed bag.
Do I need an understanding of ediscovery? Absolutely. I also need plenty of other things. Are there resources out there to educate myself about ediscovery? Tons! Does having a certification program offer me anything that these resources don’t already? I’m not seeing it, outside of the piece of paper I can take back to my firm as “proof” that I have worked at being educated. Maybe that has some value, in some circumstances, but I don’t see that it’s a huge priority item for many of us. We’re already swamped with work, and do our best to stay on top of things and keep informed. Many of us hold certifications that are directly related to the tools we use, and the way we work. I don’t think adding yet another, very broad, certification is going to do more than add another expense at a time when we are cutting them every way we can. Personally, if given the choice, I’d rather spend my educational budget on something else, something specific that our firm can use right now, not on getting a certification that doesn’t mean anything to our clients.
But, maybe I’m wrong. Maybe that’s exactly what our clients want to see, the piece of paper, even if it’s not in the hands of the attorney who works directly with them!