Are Alternative Fees and e-Discovery Compatible?

Had an interesting discussion the other day with someone who works in this industry about cases where a firm agrees to an alternative fee arrangement (i.e. a flat fee) that sparked some further thoughts about a problem that we all see in the Lit Support world all too often.

Here’s the issue with flat fees, as I see it. In theory, I totally understand the idea, it’s great that an attorney will meet with a client, get a grasp of the issues and come to an agreement on how much it’s going to cost the client. In practice, that attorney is, more than likely, less than savvy when it comes to understanding the e-discovery requirements, or costs, associated with a case. So, in the real world, the attorney and client agree on the fee, and then the discovery process begins, only you discover that there’s a whole lot more to this than meets the eye, and now you’re looking at review, processing or hosting costs in regards to all that data that far exceed the original fee agreement.

Potentially, this is a disaster waiting to happen for many firms. On the other hand, it’s a golden opportunity for Litigation Support professionals. Nothing gets an attorney’s attention more than losing money on a matter. They aren’t going to want to do that, so you have the opportunity to step in and be taken seriously when you talk about ways to cut ediscovery costs, like culling data through search terms or doing a native review instead of processing everything to TIFF images, etc. Then, if you really can come through with those cost savings, they’ll be much more likely to get you involved ahead of time and avoid this sort of situation on future cases.

Being able to get involved and out ahead of cases when they come in is a huge win for us, even if it takes a crisis to get there. We may not like to think of our offices as political places, but they are, and wasn’t it a politician who said to “never let a good crisis go to waste”?

An alternative fee agreement that didn’t take into account e-discovery costs might just be the crisis that you can use to prove your value.

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