Will this hurt or help?: FLSA Edition

The 2nd Circuit Court of Appeals ruled that document review is potentially not real legal work.

Well not completely yet. The plaintiff, David Lola, is a law-school graduate who is one of the many under to unemployed lawyers because of a maelstrom of the Great Recession and technological change. He signed up with a temporary legal staffing agency named Tower Legal Solutions which assigned him to do a project for a firm called Skadden Arps. Skaden Arps is a huge-law firm with 23 offices located around the world and they are a major played in Intellectual Property Law and Litigation. Wikipedia says that their revenue in 2011 was 2.17 billion dollars. First year associates make around 160,000 dollars (depending on location. Biglaw firms typically hire 5-10 new associates per an office per a year). David Lola and his co-workers were paid a respectable but not great 25 dollars an hour and given no overtime.

Lawyers have traditionally been a position that is FLSA exempt for a variety of reasons. Traditionally lawyers exercised a lot of intellectual control over their work and their work required intellectual skill and judgment including writing, legal research, arguing before courts and administrative hearings.

Document Review is exactly what it sounds like. A lawyer is reviewing documents that were produced in discovery. Discovery is when both sides ask their opponents for evidence. This can produce a huge volume of documents that need to be gone through especially in complex litigation. The documents are then used in depositions, court briefs, and potentially in trial as evidence. Before computers and the internet, these documents would need to be gone through one page at a time and this would often occur in huge warehouses or conference facilities. Many junior lawyers could spend their first few years doing nothing but document review until very recently.

Computers and the Internet allowed the documents to move from storage areas to servers. Recent developments have created predictive coding. Computers can read through millions of documents much more quickly than human eyes can and with much less error. In my opinion, predictive coding is still a mixed bag and produces very uneven results. After the Great Recession, a lot of clients said that they would no longer tolerate paying 400 dollars an hour for junior attorneys to read documents so predictive coding is becoming more and more popular.

But humans still need to read those documents at some point and this means that many recent law school grads are finding that they work as a document review attorneys. They are usually hired by staffing agencies who compete for projects and placed in office centers without windows. From what I hear, working conditions vary through out the country. San Francisco is supposed to be a pretty pleasant place to do document review with decent pay and working conditions. New York not so much.

Lola hired an attorney to argue that he and his fellow document reviewers are not using any of the skills that they learned in law school. They are just sitting in front of a computer for 8-10 hours a day and deciding whether a document is relevant, not-relevant, is potentially hot or privileged and needs redaction. Skaden and Tower filed a motion to dismiss. This is a standard first step for defense in all litigation. A Motion to Dismiss means that the plaintiff has not stated enough facts or evidence to prove a case has merit. The Trial court agreed with Skaden and Lola appealed. The 2nd Circuit agreed that the plaintiff made enough factual and legal allegations to survive a motion to dismiss.

Judge Rosemary S. Pooler wrote: “A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”

This does not mean Lola will win at trial. A Motion to Dismiss does not mean you proved your case. It means that you made the bare minimum of allegations to have a case/trial/valid claim. However, most cases settle (like over 99.8 percent of cases) and surviving a motion to dismiss or a motion for summary judgment often means that the plaintiff will get some form of favorable settlement in a civil trial. However, I wonder that this victory will prove to be a version of winning the battle but losing the war. Firms might move to using more and more non-lawyers (but college graduates) for document review now and paying them about the same or less.

I still think you can make an argument that document review requires understanding law and legal concepts and that in complex litigation you need someone who can read a complaint. Understand the law underlying the complaint and then find evidence that proves the allegations. Maybe this is deluding myself though.

There is also a chance that this case might end up being nothing. I’ve done document review and substantive work as a freelance lawyer in California. I was always paid an hourly rate and treated as deserving overtime. Sometimes I got the overtime on tight deadlines but I was often just kept to strict 35-40 hours a week. I’ve always been paid more than 25 dollars an hour and was able to take my document review work into more substantive freelance gigs. Not everyone is that lucky though and there are some soles that like document review and just want to go in, do their hours, and collect paychecks.

What this case really shows is how technological advancement is no longer an issue for blue-collar workers and manual laborers. Now it is also an issue that is hurting skilled white-collar workers who used to be in the most prestigious and well-respected professions. Senior lawyers still need to do document review especially in they are on the plaintiff side because those firms are not as large and often the partners still need to chip in and do their part. But there is no an idea that junior lawyers are not really engaging in law by looking at evidence all day. Being a lawyer is going to require more than just reviewing documents but what is it going to require is left unsaid.