What Can Go Wrong in Attorney Review? A Deep Dive into Potential Pitfalls
Attorney review, a crucial process in many legal and compliance contexts (particularly in eDiscovery and investigations), is designed to ensure the accuracy and relevance of documents before they're disclosed or used in litigation. However, even with meticulous planning, several things can go wrong, potentially leading to significant consequences. This article explores common pitfalls and offers strategies for mitigation.
1. Inadequate Training and Instruction:
What can go wrong? Insufficient training for reviewers can result in inconsistent application of review protocols, leading to missed relevant documents (false negatives) or the inclusion of irrelevant documents (false positives). Reviewers might misinterpret instructions, lack understanding of the case's specifics, or apply incorrect legal standards. This leads to inefficiency, increased costs, and potential legal repercussions.
How to mitigate: Provide comprehensive training that includes clear, concise instructions, relevant case background, specific review criteria, and hands-on practice with sample documents. Regular quality control checks and feedback sessions are vital.
2. Poorly Defined Search Terms and Criteria:
What can go wrong? Overly broad or narrow search terms can result in either an overwhelming number of irrelevant documents or the omission of crucial evidence. Similarly, vague or ambiguous review criteria leave room for subjective interpretation, undermining consistency and accuracy.
How to mitigate: Collaborate closely with legal counsel to develop precise and comprehensive search terms and criteria. Utilize advanced search techniques, such as Boolean operators and proximity searching, to refine results. Regularly review and refine search strategies throughout the process.
3. Insufficient Time and Resources:
What can go wrong? Rushing the review process under pressure to meet deadlines can compromise accuracy and thoroughness. Insufficient resources, such as inadequate personnel or technology, can lead to overworked reviewers and an increase in errors.
How to mitigate: Plan the review process carefully, realistically estimating the time and resources required. Prioritize tasks and allocate resources accordingly. Utilize technology to automate tasks where possible, freeing up reviewers to focus on more complex decisions.
4. Lack of Quality Control and Oversight:
What can go wrong? Without proper quality control measures, errors and inconsistencies can go undetected, leading to significant problems. The lack of oversight means no one is checking the work, leading to potential biases and inaccuracies slipping through the cracks.
How to mitigate: Implement robust quality control procedures, including regular audits, random sample reviews, and inter-reviewer comparisons. Establish clear accountability mechanisms and track reviewer performance.
5. Failure to Address Privilege Issues:
What can go wrong? Accidental disclosure of privileged or confidential information can have serious legal ramifications. This includes attorney-client privilege, work product doctrine, and other protected communications.
How to mitigate: Develop and implement a thorough protocol for identifying and handling privileged documents. This might involve using technology-assisted review (TAR) tools or employing dedicated privilege reviewers. Maintain detailed logs of all actions taken regarding privileged documents.
6. Technology Issues and Data Management Problems:
What can go wrong? Technical glitches, data corruption, or poor data management can disrupt the review process, leading to lost or damaged data, delays, and increased costs.
How to mitigate: Choose reliable technology and ensure it is properly configured and maintained. Implement robust data backup and recovery procedures. Maintain meticulous records of all data handling processes.
7. Human Error and Bias:
What can go wrong? Even with careful planning and training, human error and cognitive biases can affect review decisions. Fatigue, distractions, and unconscious biases can lead to inconsistencies and inaccuracies.
How to mitigate: Implement strategies to minimize human error and bias, such as providing regular breaks, using multiple reviewers for critical documents, and employing blind review techniques where appropriate.
By addressing these potential pitfalls, organizations can significantly improve the accuracy, efficiency, and legal defensibility of their attorney review processes. Remember that proactive planning, robust training, and rigorous quality control are key to successful and reliable attorney review.
