In November, 2006 Windy Brown posted the below letter to the litsupport Yahoo discussion group. The resulting discussion eventually led to the formation of ALSP.

Dear varied members of the lit support community:

It is time for national litigation support standards and a national oversight entity. We need to establish ourselves as a real professional industry in order to keep control of our future. If we have no defining national organization, then we have no way to legitimately validate ourselves, and we cede our profession's governance to others. ILTA, ABA, ARMA, ALA and other excellent organizations can be our guides. They've tried to define what we do to help give their members guidance, but we as a group are best at identifying what skills, qualifications and experiences are necessary to be accomplished participants in this field. We need to pull together to help them, rather than rely on them to define us.

I've worked on the east coast, west coast, Rocky Mountain region and Gulf coast. I've gone from VP of a vendor to manager then director of firm lit support departments and back to an odd conglomeration of both in-house and consultant. In all those locations and positions, I've encountered increasing difficulties both hiring qualified people and convincing HR what qualifications they need to value. (I can't even tell you the number of fights I've had over salary levels.) I doubt seriously that there is an in-house manager out there who hasn't had a similar experience. I know the vendors face many of the same issues. Only a national organization with defining principles will help us begin to address the issue by creating standards to use in these situations.

Attorneys and members of the legal field look to licenses to differentiate themselves. Pass the Bar, and you're a lawyer. Don't pass the bar, and you can't practice. Paralegal certificates bump candidates up immediately both in salary and estimation. Why should we assume that they'll pay attention to our multiple skills and understanding when we've given them nothing to use to compare or even identify us?

The complaints that I hear about on a regular basis — open positions impossible to fill, burned-out employees, high turnover, incompetence both in-house and in vendors, frustration from all sides — will continue to proliferate at a faster pace with the new discovery rules. It's already occurred to people to hold members of this profession liable for both perceived "mistakes" and real mistakes. (See Craig Ball's excellent article, Who's to Blame When EDD Vendors Go Boom?). We have no "free ride" anymore. (And, yes, really, we did — few lit support vendors have been sued on a regular basis and few in-house folks have been fired — but I suspect that will change.)

The firms, the attorneys and the clients are scrambling to figure out who or what they need. They default to what they know, so they often turn enormous projects over to baby attorneys who can use computers but have little experience with the incredibly complex world of large lit support projects. These folks try their best and don't want to be seen to fail, but rarely do they have the ability to pull the proverbial rabbit out of the hat, and we in the lit support industry end up both fixing the issues and being blamed for them. The law schools fail them by ignoring this realm, and the firms fail them through plain and sometimes willful ignorance. But, they often still look like gods to their partners because out of self-preservation, they blame others. I don't like it, but I can't blame them...

We cannot protect ourselves appropriately without a national governing group. Vendor certifications are a good step in the right direction, but most folks that I know see vendor certifications as biased and therefore less valuable. (I don't absolutely agree, but I admit to a gut reaction of  this type.)

Next year will be pivotal for this industry. It will force it into the limelight. The tensions we've seen will escalate enormously because folks will be forced to deal with things they don't understand and don't want to manage. They'll be sensitive to their lack of understanding and are likely to be aggressively defensive when faced with unfortunate decisions. Which boutique firm is going to make suing vendors their practice of choice? (Am I cynical? Yes, with a capital C. Am I right? I guess we'll see.)

I know that in-house people don't want to be lumped with vendors for fear of being subjected to sales tactics 24 hours a day. I know that vendors are frantic to help in-house people and are trying to figure out ways to do so. A national organization will not force you to share space if you don't want to. It's very simple to have different groups, such as In-House, EDD vendor, Trial Vendor, Software, Consulting Group, etc. An organization can have as many specialties or as few as its members can or will support.

There IS a way to do this. There IS a way to fund it. There IS a need.

We are a fractured group of creative, headstrong people. We've resisted this before because of our disparate opinions. But, we can come together — because frankly we must. Disagree or agree — hate me or don't — but pay attention. We risk losing ourselves if we ignore the situation. (For a well-written argument for the benefits of standards, please see Chere Estrin's post from August attached below. Chere is much better at explaining this in a coherent fashion than I. I appreciate her input and candor. I hope you will as well.)

Thank you for your time, and, in advance, for your responses.

Sincerely,

Windy Brown
Winlock Brown, Esq.
Litigation Central LLC

 
[sent 13 August 2006]

Ed:

As an educator in the legal field, I see this and other problems as very similar to those in the paralegal field. Thirty-five years ago, there were few paralegal schools to teach paralegals how to approach their jobs and how to complete assignments or even what assignments they could perform. Primarily, anyone who wanted to call themselves a paralegal, could do so without any training whatsoever. Paralegals were trained on the job by other paralegals, legal secretaries and overworked attorneys who could barely complete their own assignments.

Today, many states have mandatory legal education (such as California Business & Profession Code 6450) that requires paralegals to have standard educational requirements just to enter the field and mandatory continuing legal education that must be fulfilled on a regular basis just to keep that position. What I have witnessed as a national educator is an overall upgrade of quality and sophistication of work; a higher educated person entering and staying in the field; and law firms who in the past could care less now support furthering education as critical to getting higher quality work and retaining quality people.

The litigation support field is not much different from the paralegal field. Right now, anyone who wants to can call themselves a litigation support "expert" — whether they are in a law firm or as a vendor. Standard educational requirements to hold the position do not exist and there are no educational requirements to enter the field other than what each individual firm or vendor sets forth for their own organization.

Most litigation support staff learn on the job. Many are victims of descending quality of on the job training. That is to say, the person training them received inadequate training; the person training that person did not receive adequate training, and so on and so on and so on. Most law firms and vendors do not have substantive or substantial training programs geared toward the litigation support individual. There's plenty of continuing ed and in-house seminars for associates but firms hesitate in spending money on any non-revenue producing employee who is not slated for partnership. Firms and vendors alike take a person from another position i.e., litigation paralegal; computer technician from outside the field, etc. to transition into the lit. support field and call them an expert only after plenty of trial and error. There is no test, no certification, no standards to enter or stay in this relatively new profession.

It will only be when litigation support professionals band together through their associations such as paralegals are doing that standards will be set. Mandatory training to enter the field and maintain the position will become a requirement that not only vendors but law firm staff as well will want. It is only by grasping a fuller understanding of all the elements required for the position will expectations be better met. Where now can you go to earn a certificate to become a certified Litigation Support Manager? Paralegal schools are only just now looking at offering technical classes beyond Word, Excel and Access. This is a relatively new development and slow-moving reaction to high-speed growth of an explosively booming field.

That's not to say that the enormous challenges that have been met by lit. support stars and hard-working, dedicated and persistent individuals in this field are underestimated nor dismissed. It's simply time to take a look at the future and who will be entitled to call themselves a litigation support expert and why.

Chere Estrin, Ph.D.
Estrin LegalEd
11271 Ventura Blvd. Ste. 411
Studio City, CA 91604
www.estrinlegaled.com