It's all about the clicking

By Raised by Wolves

I guess I should clear up something for the two contract attorneys out there who might be reading this.

If perchance anyone not a contract attorney happens to be reading, that's great. My game plan is to reach actual people, not just CA's. So, I begin by explaining to those with real lives, i.e., non-CAs, about Temp Town.

Having established in the first post what CA's are, I think I should explain what we do. Yes, I touched on this in the first post, but there are subtleties that were left out of that description. Seriously, people, how could someone who has never done this understand the inanity of what we do? So back off for another post or two. I promise to be more entertaining later.

Hilarity will ensue. Exhibit patience. Or, if you cannot, then refer to the title of this blog.

What we do is click. Sounds simple, I know, but it gets deeper than that. Basically, Exxon buys Mobil, the Department of Justice reviews the transaction and makes both companies give up a shitload of documents to prove that the merger won't be bad for you, me and the guy next door, or the party in the White House. Especially the party in the White House. So both companies hire big-time law firms, mostly in D.C., and tell them they have a shitload of documents that the DOJ wants to see. Those firms go gather the shitload of documents that the DOJ might want. This is actually a shitload plus, because the initial sweep pulls in any document that the DOJ could even possibly want to look at, based on the DOJ's document requests. These requests usually are so broad as to include documents relating to employees who are having affairs. With farm animals. That is a government problem, though, not a law firm problem.

Having gathered millions of documents (mostly electronic these days), the law firm representing Exxon has to figure out how to decide what should be given to the DOJ. Obviously, the emails about employees having affairs shouldn't go to the DOJ, even though the attorneys at the DOJ probably would rather read those than the emails about market share and the other shit that they actually asked for. Especially the ones about employees having affairs with farm animals.

Enter the contract attorney. The firm representing Exxon calls a temp agency and orders up 50, or 100, or 200 or whatever contract attorneys to review the documents the firm has gathered. The agency trolls through its lists and comes up with the requisite number of CA's. They show up at the appointed time and at the appointed place – or most of them do, anyway – and start to click.

First, of course, an associate or two, maybe even with a partner in tow, tells them what to click. This orientation session will tell the CA's what the DOJ is looking for – what documents are “responsive.” (Yeah, yeah, yeah, a lot of contract attorneys are now bored. Deal with it.) This is not what the associates really care about, however. If CA's click “responsive” for every document that even looks like it has anything to do with what the DOJ is asking for, the firm will be happy. Miss a privileged document, though, and the meaning of “death from above” will quickly become apparent to the CA responsible.

Privileged documents normally are those that involve a communication with an attorney, either requesting, providing or discussing legal advice. It gets broader than that, including emails gathering information needed to provide legal advice that has been requested, but you get the picture. I'm not even going to talk about work product privilege, since I'm doing a blog, not a fucking Evidence class. Suffice to say, there are at least 97 ways a document can be privileged, and the firm representing Exxon will jack you up if you miss one of them.

Because they would rather die than produce a privileged document – OK, realistically, they would rather a contract attorney die than the firm produce a privileged document – the firm runs computer searches for words that might appear in privileged documents. These words are highlighted in one color or another in the documents to be reviewed. Red is popular. Unfortunately, these search words often include things like some important lawyer's first name, so that every document including the name “Wayne” gets flagged as potentially privileged. Every God damn document that has anything to do with Fort Wayne, Indiana, gets flagged as potentially privilege.

This results in what we like to call “dummy priv.” Anything, and I mean anything, that could possibly be construed as privileged will be marked as such. No thought necessary. Missing privilege is a good way to get fired, so CA's are really careful about marking as privileged anything that could possibly be so. (OK, good ones are. A lot are not.) If an email sounds like an attorney was in the same time zone, a careful CA will mark it privileged. Nobody ever got fired for making too much stuff privileged. Unfortunately, with some CA's, this means the crap from Fort Wayne gets marked as privileged.

So what it all boils down to is a pair of yes/no decisions. Is it responsive? In our Exxon example, does it involve oil, gas or any petroleum byproduct in any way? OK, click. Is it privileged? Is there an attorney in the same hemisphere? OK, click. Boom, we're done. Next document please. It is a system designed to be idiot-proof. Alas, if you are not an idiot, the process is quite wearisome. All nuance is removed from decisions that, while they would never be confused with rocket science, do actually involve analysis. Firms are not paying for analysis from contract attorneys – in fact, they design the procedures to discourage analysis. This is because of a fundamental distrust – the garbage men can't really be trusted to understand nuance, can they?