A.k.a., “What I do for a living.” I started a new job in the District last week – for the last two years, I’ve been telecommuting to an outfit in downtown New York. While I traveled to NYC or Charlotte offices as necessary, travel budgets started to get pinched and I ended up spending most of my time by myself all day in Arlington. And while working from home was a huge luxury for about the first six months, after a while, I started resembling Jack in The Shining. Minus the axe, but that was only a matter of time.
In any case, everyone’s been supportive through my job change, but my industry is pretty niche. When I practiced law, I had clients; now the attorneys who were my colleagues are my clients. That’s meant that for the last five years or so, I’ve been circumspect about talking shop because I didn’t want all my friends to think I’m just trolling for new clients. But I still get the questions, so tonight, a departure from my norm and an explanation of what exactly I do for a living. And while I’m not actively trying not to be entertaining, this one’s a little long and is just intended to flesh out what I do.
Before I start, I’ll say this: if you’re one of those few people who does understand my industry, or if you don’t feel like listening to me try to explain it one more time, now would be a good time to bounce over to the Popdialectic Cinema (linky goodness above) or move on down the Entertainment Superhighway (linky goodness at right). Just give me credit for trying to do this here instead of cornering you at Thanksgiving or the reunion.
In a general sense, what you see of trial law on television has very little to do with what actually goes on in the American civil justice system. On television, there’s always that moment when someone grills the witness to the point where they finally break and, dramatically, give up the goods. The young and beautiful questioning attorney always has some ace up his/her sleeve and plays it to win the trial at the last instant and against seemingly-insurmountable odds. You can’t handle the truth, right? Actually, litigation is nothing like that – the whole point of the system is for the parties to exchange all the evidence they have prior to trial, so (theoretically) both sides can make their best case and a jury decides who is right.
The sides do this through the mechanism called “discovery,” where they ask for anything the other side has that could help their case or prepare their defense against the other side’s arguments. That’s in actual litigation, but evidence is requested in other proceedings as well, like mergers and acquisitions (where the SEC might request information on publicly held companies) or investigations (where the government wants to review documents to see whether they actually want to pursue civil or criminal actions against companies). Pursuant to discovery requests, parties “produce” documents to one another for review and preparation for subsequent steps.
Now, let’s distinguish between most relatively simple cases (Grandma slipped on a puddle in Wal-Mart, slipped and hit her head, followed by a cartoonish load of bricks that fell off a shelf and landed on her) and complex litigation (the Securities and Exchange Commission is asking for information because they want to make sure AT&T and Verizon’s merger won’t mean that every conversation in the subsequent history of Mankind ends up costing $11.58 a minute). The former breed of case can be handled with some basic exchange of information or, at worst, a couple depositions and a little expert testimony. Not rocket science.
Complex litigation, on the other hand, involves production from dozens or hundreds of sources, and can run into the millions and millions of documents. When I first started practice, I worked on a products liability defense that spanned about a dozen different jurisdictions, and we had several rooms in the firm covering thousands of square feet … all stuffed with bookshelf after bookshelf of binders full of paper. The partner had a photographic memory and could ask you to bring back the email from such-and-such date between so-and-so, but that kind of practice would border on malpractice today. The Federal Rules of Civil Procedure changed about four years ago to contemplate this changed reality. Whereas evidence in a case used to be measured in pages, now it’s measured in gigabytes and terabytes.
Let’s take a real world example. The Food and Drug Administration controls what uses (“indications”) for which drugs are allowed to be marketed. You can’t market aspirin as a cure for cancer because you have a profit motive, but doctors can prescribe it for whatever they think it can do, subject to their professional obligations to their patients. So, some years ago, there was a prominent pharmaceutical company who marketed an antidepressant drug. That was fine – it was approved by FDA for that purpose. In the meantime, though, one of the side effects of the drug noted in clinical trials was that it tended to discourage patients taking it from smoking. New clinical trials were undertaken, but in the meantime, it was alleged that the company had its sales reps out pushing doctors to prescribe the drug as a tool to quit smoking. Many insurance companies wouldn’t cover smoking cessation, but they’ll pay for depression medication, so well-meaning doctors trying to enable the health of their patients ended up making things worse.
When FDA got wind of all this, they opened an investigation into a series of drugs allegedly marketed off-label by the pharmaceutical. In practice, that means a series of requests. Give us everything related to your research and development. Give us all the communications between management and your sales teams and marketing departments. Give us everything demonstrating the money you’ve made off any of these drugs over the last X number of years. Give us all the call notes for anyone in your sales force involved in selling any of these drugs. Give us all records of sales. Give us any records related to the way you establish “thought leaders” (doctor pushers) or any kinds of conferences or research you sponsor for doctors to talk about off-label indications of any of these drugs.
So, what seems like a simple question all of a sudden turns into the need to gather information from hundreds or thousands of sales reps, R&D folks, management and outside parties. All that information has to be grabbed while maintaining all the original details (“metadata”), such as when it was created, who had it and when it was last modified or accessed. Then there’s the question of going through it to find what actually has to be turned over to the other side, and what shouldn’t be because it is privileged. Firms have a limited amount of time to solve these questions, and their client corporations want it figured out with a minimum of expenditure. All of this means that serious technology needs to be brought to bear.
That’s where I and my compatriots come in. For about five years, I’ve been with consulting companies using technology to assist law firms in finding the proverbial needle in a haystack. Once we have collected all the case-critical information, sifted through it and coded everything with what found, then it’s time to give it to the other side. From soup to nuts, my side of the industry helps make sense of millions of documents related to a case.
My personal role in all this is to stand between the technology people and the attorneys. My job is to have down-pat the process and the science, but at the same time, I’ve been in the attorneys’ shoes and I know what they’re trying to accomplish. I’m their go-to, answering questions on arcane details, while keeping them apprised of progress and tools and setting them on the right path in terms of selecting the technologies that will get them to the finish line most elegantly. I translate back forth between what the needs of the litigation are and what the technology is capable of doing and I have teams standing ready to follow through. I’m Babelfish to law firms, except that I can second-guess what they’re doing and make things happen.
People ask whether I’d go back to active practice of law, and I think the answer to that is no. When I was an associate with firms, it seemed like litigation was about moving money back and forth, not really solving problems. I love the litigation process, but in practice, you go to work for 12 hours a day and there is someone bright and motivated trying to stop you from doing everything you want to do, or else it’s your job to stop them from doing what they’re trying to do. I originally went to law school because I like solving problems, and I’ve found the niche in the industry now where I get to do that – my clients call me up because they know the rules and the law and the evidence, but they don’t know how to make sense of the biggest mound of data they’ve ever heard of. I spend my 12 hours a day now trying to enable someone to do something I care about. And my job is to learn new technology all the time, which satisfies my raging inner geek.
For what it’s worth, and for anyone left reading, I’m perfectly happy to discuss any of the above without marketing myself or my company. It’s not often you find something to do for a living that’s a flat-out good time, but I love this stuff. Any excuse to talk about it is a good one.