Okay, here’s the last post of my series uncovering the subtext of the world of document review. Although I hope you’ll enjoy what you’re about to read, you won’t really get the big picture surrounding the narrative, the meta-narrative that created the narrative, unless you’ve read my previous posts. They explain how racial and gender discrimination in legal education and the practice of law have helped create the doc review world. Think about it. Why would it even exist? Here I’ll finish telling you why. I’ll give you the last piece of the big picture meta-narrative that answers that question. It has to do with the Great Recession that rocked the country starting in 2008, and the rise of technology in the legal field. Here we go.
As I set out in my first post, a few years ago, after teaching law at the University of Iowa since 1990, I returned to Washington, D.C., where I went to law school at Georgetown University Law Center and practiced law for four years at Arnold & Porter, a large D.C. law firm, a “Big Law” practice. To earn some “fun money,” I started working as a contract attorney, meaning an attorney hired on a temporary basis to work on projects involving big litigation or business transactions being handled by Big Law firms. My first project was a huge business transaction that required over two hundred contract attorneys. The orientation took place at a large hotel ballroom in downtown D.C. When I walked into the room I saw what was essentially a “pop up” law firm. And I was struck by what you would never see in a law firm that size or larger. It was comprised mostly of people of color. At least half were women and a majority African American. Two law firms, one amazingly diverse, coming together to work on a major project with real consequences. So cool! Especially for someone like me who has advocated for diversity in both academia and the practice of law.
Well, maybe not as cool as I initially thought.
I really liked what I saw on the surface in the ballroom. But something wasn’t right. I couldn’t pinpoint it though, especially since I was newbie contract attorney and knew little about that type of practice. After all, I had been in the proverbial ivory tower for over two decades.
I needed to dig. Dig for the subtext, the counter-narrative that belies what we see on the surface. Here’s what I found. I’m going to use a stylized narrative, a story, based on the data I’ve given you in my posts so far. I’ll try to capture what this world is like but the story is purely fictional. There’s nothing in this account that discloses anything about the real cases I’ve worked on and I’ve created the characters in my head. At three in the morning. Sitting in my office. Eating leftover Halloween candy I never intended to give the trick-or-treaters.
On the top floor of a newly constructed building there’s an elegantly appointed, spacious office with large windows giving you a bird’s-eye view of D.C. It’s a cold mid-December morning but the sky is clear and the sun bathes the room in a warm light. That’s the senior partner’s office in a Big Law firm, and the person ensconced in an expensive black leather chair is a white male dressed in an Italian custom-made charcoal-grey suit, his feet kicked up on a gleaming, neatly arranged desk. He’s a “rainmaker,” a nationally prominent lawyer who brings in big-time and very profitable litigation. And he’s landed a whopper of a case defending a corporation in a class-action lawsuit involving a defective product that’s harmed thousands of plaintiffs. Billions of dollars in liability are on the line, with possible crushing punitive damages that will tank the company. He’s on the phone with the opposing counsel’s top dog, a very successful and wealthy plaintiffs’ attorney. They’re discussing the big picture strategic positions of the parties. As an “equity” partner, he owns part of the firm and shares in the firm’s profits. He banks about $3 million a year.
Another white male darts out of a smaller office down the hall doing the “I-gotta-pee-so-bad” half walk/trot to the bathroom as he reads a memo, allowing him to bill the client while he attends to his bodily functions. He’s the “junior partner” who handles the supervision of behemoth cases brought in by the rainmakers. Typically junior partners are salaried and don’t have an equity stake. This fellow’s annual salary is $1 million. He hopes that if he gives up sleep for the next few years he’ll be able to join the firm’s equity club.
A few floors there’s a still smaller office. The windows aren’t nearly as large as those of the rainmaker’s and they reveal only a partial view of the city below. But on a sunny day the natural light warmly visits the office in the afternoons, hitting the wall featuring diplomas and family photos. The desk and office chair are high quality but you wouldn’t know it because files are strewn in chaotic heaps on the desk and floor. The person seated behind the wall of files is a white female dressed in a smart business outfit from Nordstrom’s, her eyes glued to her laptop while she cradles her phone between her neck and shoulders as she talks to the junior partner. That’s the office of an associate who’s been at the firm for eight years, a “senior associate.” She’s coming close to being considered for partnership. Many of the lawyers who started with her have left the firm but she’s sticking it out, regularly working eighty-hour weeks in the hope of adding yet another woman to the partnership ranks still dominated by men at the firm. Her job is, among other things, to supervise the production of documents demanded by plaintiffs’ counsel as delineated in a “request for production.” This will involve millions of documents, mostly electronically stored, ranging from emails, to contracts, to PowerPoint presentations. In return for her dedication she takes home $340,000 per year.
Just above the street level there’s an even smaller office. It’s a clean and comfortable office with windows that overlook a loud, chaotic D.C. thoroughfare. On sunny days the office will catch a shaft of light for about an hour. There are two lawyers in the office, one an African American male, the other a Latina. They, too, are dressed business casual, most of their cloths bought at J. Crew and Jos. A. Bank. They are the “junior associates,” working like crazy with the senior associate to organize the request for production, putting in long hours and giving up many weekends. Since they both share the room, they’ve had ongoing conversations about their chances of becoming partner, recognizing there a very few attorneys of color at the firm. More often than not, they leave the firm in their fourth or fifth year. What the hell. They’re making $190,000 a year. Take it while you can get it. Pay down some of their huge student loan debt.
Then there’s the equivalent of the basement. About ten blocks away from the firm there’s a non-descript office building sandwiched between a parking garage and shoe repair shop. Just outside the entrance doors and off to the right there’s a middle-aged man with a prematurely heavily-wrinkled face and an alcoholic’s nose. He’s sucking on a cigarette while he scrolls through his IPhone. He’s wearing Costco’s finest pants and a long sleeve shirt that’s so wrinkled it could’ve been taken from an elephant’s bed. A security card hangs from a lanyard around his neck.
An African American woman looking to be in her thirties enters the lobby carrying a big cloth bag in one hand and a cup of coffee in the other. She’s annoyed by the smoker. On more than one occasion she’s come close to telling him to poison himself down the alley alongside the building but decided he wasn’t worth her time. She’s wearing crisp black pants and a maroon top, both bought on sale at Kohls. Nice clothes, smart shopping, she thinks to herself after every shopping trip there.
The security guard says, “Happy Monday!” The woman, who’s wearing earbuds, says nothing but offers a faint smile, the best she can do on a Monday. There’s nothing happy about it. She crams into the elevator and presses the button for the tenth floor. The smoker will do the same when he’s finished. Her face is expressionless. Once on her floor, she uses her security card to open a heavy glass door and walks through a small reception area with a cardboard sign of the contract attorney agency perched precariously on a shelf behind the reception desk. Seeing a receptionist there was hit or miss. Who cares?
Two weeks ago she had attended an orientation program for the contract attorneys hired for the project. It was in a large hotel ballroom with a stage put together for the PowerPoint explanation of the protocol the attorneys would use to review the millions of documents requested by plaintiffs’ counsel. She knew a good number of the people there. A gentleman sat next to her and marveled at the diversity in the room. “So cool!” he said. She stared at him. He got up suddenly and found another seat. She felt sorry for him. Obviously a newbie.
The firm’s junior partner began the program with a brief welcome and an overview of the project, after which he handed the program over to the senior associate. She spent the next three hours going through the slides. The African American woman studied the protocol, absorbing it quickly. She tuned out the senior associate, who was just reading the protocol. Super boring.
Her mind drifted to the book she had just finished on the Metro from Shady Grove, Maryland, the last station on the red line. The commute to D.C. was over an hour but at least she could afford her one-bedroom apartment. It was the best she could do after the divorce. Thank god they had no children, which would’ve made the separation even nastier. The book, “Just Mercy,” by Bryan Stevenson, really resonated with her. It was an autobiography of an African American lawyer who committed himself to exonerating those wrongly accused of horrific crimes and, in many cases, sentenced to death. All of his clients were the most vulnerable in society, those without a voice: people of color, the poor, exploited women, children, and the mentally challenged. He barely made enough to pay the rent and buy groceries. But he was doing the right thing, she thought. He was on the right side of history.
She’s wondered whether she could’ve been like him. He was a 1985 graduate of Harvard Law School, when the legal market was booming. He had choices. She graduated in 2010 from a fourth-tier law school way down in the national rankings. She had no chance of getting into the top tier law schools given her LSAT score. Some of her friends warned her against taking on massive debt to get what might be a worthless J.D. degree. She ignored them. She had been raped in college. As a survivor, she was determined to become a lawyer and work in some way to help other survivors.
Just after her first year in law school the country plummeted into the greatest financial crisis since the Great Depression. The legal profession imploded. Many law firms collapsed. Those that survived did so by laying off lots of lawyers and slashing costs. Many observed that the profession was entering a new normal. The days of plentiful jobs where demand exceeded supply, like the decade of the 1980’s when Stevenson graduated, were over. For good. Still, she thought she had a decent chance of finding some work in the profession, maybe not in her field of choice right away. After all, the law school she attended all but promised she would land a job no more than a year after graduation, luring her and many others to enroll by showing them what turned out to be misleadingly high placement numbers.
After she graduated, she and her husband, a graduate student in urban studies whom she met and married in law school, moved to D.C. even though they didn’t have jobs lined up. He was able to find a good bartending gig, which allowed her to study for the D.C. bar. She passed the first time around. Now that she had become an “esquire,” she joined the Washington Bar Association’s Young Law Division to build a job-yielding network but with no luck. The best she could find was a dead-end internship with the D.C. municipal government.
They both started to panic about money and crushing student debt that eventually would become due. As the stress rose the marriage crumbled. He blamed her for pushing them to move to an expensive town where every other person is a lawyer, many of whom are unemployed or underemployed in the profession. He left for Seattle. She moved to Shady Grove. A jobless lawyer. Unlike Stevenson, she felt she had no choices.
The woman remembered a conversation she had with someone at a D.C. Bar meet-and-greet. They talked briefly about work as a contract attorney. She was told that kind of work exploded after the financial crisis, especially in places like D.C. and NYC, when Big Law clients demanded lower legal bills and balked at paying for the training of clueless junior associates, who typically were assigned to document review work. What really helped create and grow that job market was the rise of electronic discovery. Back in the day, lawyers had to deal with actual paper when doing doc review. No more. Now everything is electronic. There’s software that lawyers use to record whether documents they’re looking at on the computer screen should or shouldn’t be turned over to the opposing counsel. There’s even “technology assisted review,” which allows the software to learn as the lawyers code the documents, making the review more efficient. In a nutshell, today most document review in large Big Law cases is farmed out to help reduce the price tag for clients while maintaining the firm’s profit margin. Agencies are the intermediaries that find the contract attorneys who’ve become proficient in the software. The woman thought about it. Hmmm… She eventually dismissed it. Although it’s important work, she would find a real job, a job that would propel her to the goal she had set out for herself.
The woman walks down a hallway and uses her card to enter her office. It’s a cavernous, windowless room with nothing other than long, cheap folding tables. On those tables are a hundred or more computer screens, keyboards, and mice, meaning the computer “mouses,” but the facility has furry little creatures that come out at night looking for food droppings. The screens are only a few inches away from each other. The office chairs are cheap and worn, many with questionable stains, some obviously broken in some way. The industrial carpet has seen much better days, permanently recording coffee and food spills. The doors are stained black with thousands of handprints layered over each other. Some might call it office art, the woman supposes.
When she gets to her assigned space—she asked to be moved but was told no—she sets her coffee down and immediately signs into the computer, not bothering to take off her coat. It’s 9:05 a.m. She has to record her time in fifteen-minute increments. By logging in right away she can bill from 9:00 a.m. rather than 9:15 a.m. She’s paid $30 an hour, so that means $7.50, half of her round trip commuting costs. And cumulatively those fifteen minutes will help her pay the enormous ACA insurance premiums. No benefits for contract attorneys unless they’re on a long-term job.
Once logged in she takes her coat off and pulls out of her bag the things she’s grown accustom to bringing to the projects over the past seven years: hand sanitizer, hand cream, snacks such as crackers and fruit, and a portable phone charger. She also pulls out a shawl because she sits under a vent that blows cold air even in the winter. Then comes her lunch, a chicken salad in a Tupperware container. She hopes she won’t be the victim of fridge theft. It happens too often.
She returns to her station. The room is filled with people who’ve settled into the same routine. They’ll spend at least eight hours that day staring at the computer screens clicking the mouse to indicate whether the documents are relevant to the litigation, and whether they are protected by attorney-client privilege. Many wear earbuds and listen to music or podcasts. On occasion they’ll pull them out and chat with each other, sometimes breaking out in raucous laughter. But they’re careful not to do that often as they risk being reprimanded by an agency supervisor for being too loud and disturbing others on the floor. For that reason, some talk to each other in whispers. The woman doesn’t like that. Sounds like they’re in church. That space is sacred. This place. She stops herself.
Throughout the day the reviewers check their email and maybe check out Facebook. They’ve learned through the years to do this furtively in the room, placing the smartphone under a pad of paper and leaning over the desk as if concentrating intensely on the work. They do this because some agencies at least officially say that phones have to be put away. If they want to make a phone call they have to leave the room and find a space in a hallway. There’s no privacy for the call but reviewers have learned out of reciprocal courtesy to tune each other out.
Some people, like the guy sitting next to the woman, apparently don’t give a shit about phone use in the room. He spends most of the time scrolling through stuff on his phone, maybe funny videos, only occasionally coding a document. Over the years he’s learned how to code near the minimum number of docs per hour—projects will require a minimum per hour, maybe sixty—to avoid getting fired. Even if he falls well below the minimum, he knows that some agencies look the other way if there are others clicking quickly through the docs. The woman feels both contempt and pity for this guy and others like him. They have no self-respect. Maybe they were prideful, inspired law students but years of doc review have sucked that out of them, leaving a mere shell that barely resembles a lawyer.
The reviewers are very diverse, a heck of a lot more diverse than the Big Law firm that hired them, much more diverse than the profession as a whole. Many are African American. Latinos as well. About half are women. Africans, too, many from Nigeria. There’s a wide age range. You have your recent graduates who can’t find jobs right away. You have folks who’ve retired and work for fun money or to battle loneliness—or maybe they can’t stand to be with their partners all day. The bulk of the others are lawyers who’ve been laid off or otherwise haven’t been able to find non-contract attorney jobs for some time. It’s common knowledge that working more than a couple of years as a doc reviewer is the kiss of death. Law firms and other employers in the legal profession won’t touch them. That’s probably why the recent grads look super anxious and miserable. You can spot them a mile away.
Now and then when the woman visits the cramped lunch room she’ll overhear some reviewers musing over their situations in life. It’s not so bad, someone says. Sure, we don’t make law-firm salaries and have no benefits, but doc review is decent money and we leave work behind us after we punch out. We can have a life! When the woman hears that, she chuckles to herself. The most terrified persons she’s ever seen is when a firm lawyer or agency person walks into the room and announces the project is over. As the reviewers gather their belongings, they wonder how quickly they can check their phones and laptops for other project openings. If they hit a dry spell they’ll be waiting on tables or driving for Uber.
The woman has settled in and arranged everything in her space for the day. She’s wiped everything down with sanitizer and wrung her hands with moisturizer. The door opens and the two junior associates walk in, trying to appear confident, competent, and friendly all at the same time. It’s not working. Simultaneously funny and pathetic. The reviewers slip their phones quickly under their notepads. Except the guy who doesn’t give a shit.
The associates thank everybody profusely and express great confidence in the awesome work everyone on the team will do on behalf of the client. To help move the project along they’ll be patrolling the room to answer any questions the reviewers might have. The woman rolls her eyes. She’s far more skilled than these kids when it comes to doc review. But she, like all other reviewers, has to grin and bear it. Some of the fawning is nauseating.
The woman stares at the computer screen. Her face still emotionless. She closes her eyes, imagining another life. The life of a passionate lawyer. Feeling alive. Inspired. Noble. How she felt as a first-year law student. A life that wouldn’t seemingly be pre-determined by her race and gender. A life where she could at least have a shot at being another Bryan Stevenson. That’s all she wanted. Just a shot.
She opens her eyes. Something powerful wells up inside her. It happens a lot at the beginning of her day. As always she exhales slowly to keep it inside, fearing that if it escapes her it won’t come back. She’ll eventually become yet another reviewer who doesn’t give a shit. She can’t let that happen.
She blinks away a budding tear.
And starts on her first document of the day.
The woman did eventually get her shot and wound up doing policy work in D.C. for an international foundation promoting gender equality. When she left her last and final doc review project, her co-workers as well as the agency personnel cheered for her, as they did for everyone who could leave that world. She let herself breakdown and cry. They were her friends after all (well, not all of them), even though they all scattered quickly as soon as they punched out. Rarely would they socialize outside of work.
Although she was miserable doing doc review, she knew that it was important work for the client and that the agencies perform an important role in finding good reviewers. If you carelessly fail to code documents privileged and not discoverable, vital information that would’ve remained confidential now must be disclosed to opposing counsel if it’s relevant. This could be disastrous.
She also realized that the contract attorney doc review industry now plays an important part in the new normal of the legal profession. Law firms have had to re-think their business models. They’re now moving away from the billable-hours structure to fixed price or budgeted arrangements with clients. And that will involve farming out document review so that firms aren’t charging clients high hourly fees for work done in-house by junior associates making $190,000 a year.
The woman tried to find the gentleman who clumsily sat next to her at the orientation for a big project years ago. But he was nowhere to be found. She wanted to tell him that in a way it was cool to see so many people of color there. Thirty years ago there were far fewer in the profession as a whole. It still bothered her, though, that most Big Law firms were still a pyramid in terms of diversity. At the top, the partnership ranks, you see few people of color and not enough women. The diversity grows as you move down the pyramid, with the greatest number at the base, the doc reviewers.
Would she want to be a partner in a Big Law firm? Probably not. But she wants to live in a world where she could have a real shot at it if she wanted to. Just a shot.