New Technologies Improve Knowledge Sharing about Experts and Judges

By Mark R. Torchiana – January 9, 2012

Through the use of technology, law firms have become increasingly adept at leveraging firmwide knowledge to efficiently share information regarding attorney expertise and customer relationships. However, firms generally fail to successfully share information about the individuals who often matter most to litigators and others who commonly appear in court: expert witnesses and judges.

Current Approach to Information Sharing
Experts are often crucial to successful litigation outcomes. Therefore, locating or vetting potential experts and assessing the credibility of opposing experts become critical tasks when evaluating the overall strength of a case. Similarly, selecting an arbitrator or a mediator and receiving a judge assignment have important ramifications to the attorneys handling a case. Despite the important roles of these individuals, law firms fail to adequately track prior experiences working with experts and appearances before arbitrators and judges. Attorneys commonly rely upon "Does anybody know . . ." emails because they lack a more comprehensive and efficient system. This often results in dozens of emails per week, seeking referrals for expert witnesses or insights about specific judges and arbitrators. Clearly, this approach has significant downfalls.

Litigators are extremely busy with depositions, trials, and other work that requires immediate attention. As a result, they often fail to respond to the many requests for information that populate their inbox even if they have valuable experiences to share. This leads to mistakes. Several different attorneys have shared stories about aggressively cross-examining an expert only to learn that the expert had previously been retained by other attorneys at the firm. Surprises like that are particularly embarrassing to the examiner.

Valuable, non-billable time is wasted when attorneys review these “Does anybody know . . .” emails. The opportunity cost of this time adds up quickly. The excessive number of emails sent firmwide and frustration with a general lack of centralized information-sharing has led many firms to elevate this problem to the top of their priority lists.

Newly Available Technologies
Setting up customized, complex internal databases has traditionally been an expensive, time-consuming process. However, advanced out-of-the box software solutions are making certain types of systems relatively inexpensive to design and implement. Most law firms utilize complex intranets that generally require at least some software customization, even for prepackaged software programs.

Sharepoint
Increased adoption of Sharepoint has enabled law firms to easily share folders of documents across offices. Firms may set up specific folders to hold relevant expert witness documents (e.g., curricula vitae, published expert reports, deposition and trial transcripts) or judicial documents (e.g., published decisions, biographies), which are available to all members of an organization. This system collects all relevant documents and even written performance reviews in one easy-to-find location instead of storing the information in various folders spread throughout the company's archives.

Wikis
A wiki is an Internet or intranet-based site, accessible by a web browser. It encourages collaboration by allowing users to easily edit any page or create new site pages. Wikis are relatively easy to set up and use to capture data, but organization may be difficult to maintain if they are not actively monitored by a group administrator.

CRM Systems
Business development groups at many law firms are already using sophisticated customer relationship management (CRM) systems to track relationships between firm members and actual/prospective clients. Some programs even scan all firm emails to assess which attorneys know which potential clients. Since these systems are used to track communications between individuals, this software may also track interactions with experts or appearances before judges.

Enterprise Search
Powerful enterprise-wide search tools have been developed that allow users to search all available data sources within a firm, supplemented with additional data from outside sources. These software packages are becoming increasingly sophisticated and enable users to filter and refine search results. Given the significant amounts of digital information within a firm and online, the ability to organize and understand data is of paramount importance.

Performance Ratings
In addition to the proliferation of in-house documents and relationship information, a new type of valuable content is becoming increasingly available to attorneys: performance ratings. Websites offering crowd-sourced ratings of small businesses, restaurants, teachers, and even lawyers have existed for years. Recently, a handful of sites emerged that offer professional reviews of legal vendors, expert witnesses, and judges. Younger attorneys, in particular, expect and rely upon this type of information when making purchase decisions, reflecting their adoption of other crowd-sourced rating services.

Attorney Contributions Yield Success
Ultimately, the value of any knowledge management system stems from the content contained within the system. Attorneys are risk-averse by nature and by training. As a result, they are not necessarily eager to share information with colleagues and may be hesitant to put their opinions in writing. Most importantly, attorneys are extremely time constrained and prefer to spend their available time on billable client work.

Of course, these same time-constrained attorneys want pertinent information quickly and easily when they have a specific need for that information. Successful firms often encourage early adoption by identifying one or more champions within the firm. An existing knowledge management attorney or group can be invaluable in this regard. From encouraging active litigators to post information to pre-populating systems with currently available reviews and documents, these champions help "sell" the solution internally. Ultimately, as attorneys start to find valuable information in the system, they will begin to fully embrace its use. A key milestone is reached when firm members voluntarily spend several minutes per day contributing to the knowledge base as opposed to sending and responding to email. As time shifts from reading and responding to “Does anybody know . . .” emails to contributing information into the knowledge management system, total nonbillable time spent on these activities decreases.

Benefits of Adoption
Firmwide adoption of a knowledge management solution will achieve several important benefits.

Preserve an Accurate Historical Record
Performance reviews are captured while impressions are recent and accurate instead of relying upon vague recollections working with individuals years ago. Relevant documents are located in a single repository for easy access and comparison. Importantly, these experiences and documents remain in the firm knowledge base even after individuals leave the firm.

Reduce Inbox Clutter
A significant reduction in "Does anybody know . . . ?" emails means that remaining emails will be meaningful targeted follow-ups for additional information. As a result, response rates will dramatically improve.

Reduce or Eliminate Research Costs
Some firms rely upon paid expert referral companies that either provide experts for significant fees in excess of expert witness rates or sell research services to locate and vet potential experts. The time and money spent on these companies will be greatly reduced if not totally eliminated.

Avoid Surprises in the Courtroom
Many attorneys have been surprised to learn about specific judge proclivities or to find that a retained, well-credentialed expert witness performs poorly in the courtroom. These types of detrimental surprises will be minimized if not eliminated.

Create a New Marketing Opportunity
Clients continue to demand greater efficiencies from law firms and request specific examples of the benefits of using larger organizations. A knowledge management platform is an excellent example of leveraging global expertise to increase attorney efficiency and improve success rates for clients. In addition, clients’ General Counsel are already beginning to monitor law firms’ expert and consultant usage and costs and, therefore, will appreciate the benefits of such information.

Future Implications for Law Firms
Attorneys and law firms are not typically known as technological innovators. However, emerging tools and platforms are making it easier than ever to change that perception. In-house and online sources of information related to experts, arbitrators and judges are growing rapidly. Therefore, identifying, cataloging, and sharing this information must be an internal priority for law firms in the future. Law firm knowledge management and IT professionals who recognize this need will develop private, in-house systems to capture and share relevant documents as well as critical performance information. These systems may be supplemented by outside vendors providing important additional content not available within the firm (e.g., additional performance evaluations, biographies, case histories).

Although some attorneys will initially oppose the concept of documenting firsthand experiences working with litigation professionals and judges, they will eventually discover the benefits of sharing this valuable information within a firm. As clients and technologically sophisticated attorneys drive usage and adoption, such knowledge management platforms will become common. Like other technological trends, firms will feel compelled to adopt these systems as their competitors do so. However, it will be the early adopting firms that benefit most from these innovations.

Keywords: knowledge management, litigation, expert witness, judge

Mark R. Torchiana is the cofounder and CEO of Courtroom Insight, Inc., in San Francisco, California.

Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).