EDUCATING THE NEXT GENERATION OF EDISCOVERY PARALEGALS
Friday, October 23, 2015
Posted by: Jason Krause
When a matter begins moving towards trial, the modern litigation paralegal is often the person in the middle of every aspect of eDiscovery. That includes technical skills like implementing legal holds and collecting evidence to interpersonal skills such as managing the vendors, outside counsel, and custodians of data. “A litigation paralegal is the traffic cop for the entire firm,” says Joseph Bichanich Director of Practice Support with Michael Best & Friedrich in Milwaukee. “They have to be able to fill all the roles a paralegal has always been responsible for as well as new, technical skills no one would have dreamed of not too long ago.”
The growth of electronically stored information in cases of all types has given rise to a new breed of practitioner responsible for handling the complex, nitty-gritty aspects of eDiscovery. The eDiscovery paralegal, as this increasingly important position is called, has become a fixture on litigation teams, and heads many crucial tasks involving the preservation, collection, processing, analysis, review and production of ESI. Where eDiscovery has created new risks and challenges for many, it has also opened the door to new job roles and career paths for those who know where to find them.
Educating the Educators
At the American Association for Paralegal Education (AAfPE) Conference in Milwaukee this week, paralegals, educators, and litigation support professionals discussed how to help paralegals learn to manage their new roles in eDiscovery. It’s clear that is a complicated task. “A paralegal has to know not only how to manage documents in discovery, but they are also often the person responsible for choosing which vendors to work with,” said Bichanich, one of the speakers at the opening session. “That’s fine, but please note that there are over 500 eDiscovery vendors to choose from.”
eDiscovery is by far most expensive part of litigation, and paralegals are expected to perform it correctly, manage complex data, while reducing costs and risks. Unfortunately, because few matters go to trial anymore, eDiscovery skills are often difficult to come by. “Even if only 2 percent of cases go to trial, for the other 98 percent, I guarantee discovery is driving settlements and negotiations,” says Joe Slonka, Paralegal Department Chair of Arapahoe Community College. “A lot of paralegals are thrown into a matter without the skills they need to manage the process.”
Organizations, including law firms, that fail to produce ESI appropriately in litigation or investigation face sanctions and reputational damage. In addition, the American Bar Association’s Model Rule on lawyer competence now states that “…a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Of course, that means many lawyers will be leaning on their litigation support staff and paralegals to manage the technical aspects of eDiscovery.
The challenge, as the AAfPE attendees see it, is to create a program in line with the skills demanded by today’s legal marketplace and technology-based law firms. That means educating paralegals about electronic filing requirements, litigation hold obligations for all legal professionals, the updated Civil Procedure rules, and electronic filing requirements for all legal professionals.
As technology evolves that becomes a difficult task. However, Slonka recommends that schools find guest lecturers to assist in classroom delivery of content and demonstrations of software. In addition, he says that schools must gather as much software for demonstration purposes as possible. He says Arapahoe Community College has found vendors willing and able to provide software and data sets to his students in order to practice eDiscovery skills.
However, given the need for paralegal education in eDiscovery, no one at the conference reported having a stand-alone eDiscovery course available for students. (ACEDS has helped create at least one such course with UC-Irvine.) This is in part because educators need to get approval from their boards, curriculum committees, and deans before introducing new courses. In Slonka’s case, a new course would need to be approved by all programs in the state of Colorado providing paralegal education. However, many educators have worked around this limitation by simply adding eDiscovery coursework to their existing litigation classes.
Slonka and others believe that eDiscovery education is vital for any aspiring paralegal. However, the biggest problem he and others find is simply identifying and recruiting teachers who has the experience and knowledge to teach eDiscovery to the next generation of paralegals. “It’s going to be an uphill climb to get these courses off the ground,” says Slonka. “But it is such an important part of litigation today, I think once it is available, it ought to be mandatory for all paralegal students.”