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.
What is the exact nature of Lola’s complaint? I understand why he isn’t exactly thrilled to be doing doc review but can’t figure out he is exactly suing over. Even if what lawyers who are doing doc review is limited, I can’t imagine without any legal training being able to determine if a document is relevant to a particular case, the level of relevancy, or if it is privileged with the same degree of success as a person with legal training. Relevance and privilege are legal concepts.Report
What is the exact nature of Lola’s complaint? I understand why he isn’t exactly thrilled to be doing doc review but can’t figure out he is exactly suing over.
Me either.Report
I think the big argument was that since he was paid hourly, he deserved to get overt time. The rest of it is arguments about why he and people with similar situations are not FSLA exempt despite being lawyers.Report
Got it. It makes sense. This might be neutral. You don’t need to be a lawyer to do doc review but your going to need some legal training. Since doc review projects are temporary, it is easier to higher lawyers rather than have to repeatedly teach non-lawyers some basic legal knowledge.Report
I worked on a document review project for a couple of years. I don’t recommend it as a lifestyle.
Frankly, in my limited experience you don’t need any legal knowledge at all. We were, among other things, looking at field reports from pharmaceutical reps creating metadata by coding in the names of any doctors mentioned. You need someone with legal knowledge to set up the project, but the people actually doing it are essentially drones.Report
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.
Prestige and respect is at stake? Dayum. Now we all – as a society! – can start taking this issue seriously!!Report
Did it just get bitter in here?
I find this sort of attitude interesting. There are lots of people who feel underemployed in a wide-variety of professions because of technological change and the Great Recession.
There seem to be two general responses to this:
1. Accept ones fate and just accept I don’t know, whatever comes your way.
2. Have some hope that things will get better and improve and fight for it.
People in category #1 seem to think that people in cateogry #2 are a combination of arrogant and/or delusional. There have been career turnarounds before haven’t there?Report
Hey, I’m perfectly fine with you fighting for … whatever it is you’re fighting for in this post. I just found your apparent surprise that prestige and respect don’t insulate certain professions from robot-replacement interesting. I mean, things have really gone sideways when a robot receives all that highly coveted cultural prestige, yeah?Report
R2D2 has more cultural prestige than any lawyer.Report
You have to remember that saul fled his mfa to get his j.d and clearly it isnt living up to his expectations.Report
Bitter? Wow.
More importantly, does “suing” count as “having some hoping that things will get better and improve and fighting for it”?Report
I think it’s less about technological advancement than it’s about the problems with carve outs, exemptions, and special pleadings in labor law. See also, the recent New York state move to give fast food workers 15 / hr min wage sooner than other workers.Report
1. I took the liberty of correcting the reference to the “FSLA” to the “FLSA.”
2. This is definitely an interesting case. As I recall – though it’s been awhile now, so I could be wrong – right around 2003 or 2004, the DC Bar took the position that document review was inherently the practice of law and demanded that all attorneys doing document review be barred in DC. I mention this because it seems that the reliance on state law to determine whether a document reviewer is engaged in the practice of law could potentially limit this decision.
3. My initial inclination was to disagree with the Fourth Circuit on this, but reading the opinion, I think they got it right on the facts, at least as alleged. From what I can gather, it seems like the allegation in the complaint was that, while the plaintiff was doing document review, he wasn’t being asked to use any legal judgment in the process. In other words, as alleged in the light most favorable to his claim, his complaint could be construed as saying he was just being asked to categorize by subject matter according to rules set up for him by others, rather than being asked to make any determinations as to whether something was privileged or relevant. It seems to me that if it turns out he was being asked to make at least initial determinations about privilege or legal relevance, etc., then he will lose on summary judgment.
Then again……there’s a bit of a conundrum here since this plaintiff is not barred in North Carolina but the court determined that his allegations could have amounted to the practice of law in North Carolina, creating all sorts of UPL issues for both him and – potentially – Skadden.
3. This case may settle, but it seems that it’s also a case that is unusually likely to go to trial if Skadden thinks it can win at trial because of the precedential issues. If the 4th Circuit ruling on the MTD stands as the final word on the case, then Skadden (and other biglaw firms that are equally stingy on overtime for doc review attorneys) is going to have to start paying its doc review attorneys overtime going forward even if it settles with this particular class for just back pay; otherwise, these suits will keep being filed since you can’t evade the FLSA by contract. More likely to me is that it at least goes through an MSJ unless Skadden just decides to completely wave the white flag.
4. I’m not at all sure how technological advancement is hurting lawyers here. Like you said, most document review work still requires at least some legal judgment and, if firms are going to charge clients more than peanuts for document review work, they need to have attorneys doing the work. What’s more, it’s worth pointing out that the sheer number of documents to review nowadays has grown exponentially in just a few years. The entire concept of e-discovery effectively didn’t exist at all 20 years ago, and even Zubulake was just a little over 10 years ago. I also recently saw a statistic showing that the amount of data companies store has increased something like 10 fold in just the last decade, meaning that there’s effectively 10 times as much data to review now. In other words, technology is the reason why document review work exists as a substantial thing at all, despite the many other problems with document review work. Predictive coding certainly mitigates the effects on document review jobs of a lot of this growth, but it seems to me that its primary effect is to make those jobs more manageable rather than eliminating them altogether. Though, I suppose it depends on your frame of reference, too – the explosion in data is, I assume, slowing, and so if you’re comparing to, say, two or three years ago, then predictive coding may well be resulting in fewer doc review jobs; on the other hand, if your comparison is to even five or six years ago (and certainly to 10 years ago), then my guess is that it probably is just mitigating the explosion in data.Report
@mark-thompson
The case took place in the 2nd Circuit, not the 4th despite the plaintiff working in North Carolina. My guess is that the plaintiff’s attorney decided to sue Skaden on their own turf for procedural reasons and also possibly for a more favorable jury. The decision to outsource to North Carolina was done by Skadden brass in NYC.
“Then again……there’s a bit of a conundrum here since this plaintiff is not barred in North Carolina but the court determined that his allegations could have amounted to the practice of law in North Carolina, creating all sorts of UPL issues for both him and – potentially – Skadden.”
In my experience, the agencies that do bar review just want you to be barred in any state. I have mainly been direct hire but also worked through agencies that compete for projects from the firm. A doc reviewer will be paid something like 25-36 dollars an hour. The agency will probably bill the law firm double that and the law firm will probably bill the client double what the agency bills them, maybe more. The agencies only care that you have a bar card. The cases that doc reviewers generally work on are big and complex and potentially involve Multi-District Litigation.Report
My mistake about the 2d/4th distinction. Probably wise of the plaintiff’s attorney to sue in the 2nd Circuit, which is definitely more labor-friendly.
While I’m aware that the agencies typically don’t care where you’re admitted (except to the extent the place you’ll be doing the work requires you to be admitted there, which as I said, is the case in DC IIRC), my point is that if the standard is “does this amount to the practice of law in North Carolina such that the review attorney is FLSA-exempt,” then there are definite implications if the court rules against the Plaintiff and for Skadden, and those implications include that Skadden (or at least the agencies it uses) needs to start making sure that the people it hires to do doc review work in NC are barred in NC.
If the answer is just “it’s not the practice of law, but it is legal support services,” then there’s no legal requirement for the reviewer to be barred anywhere, and never was. This is probably the right conclusion in most instances, anyhow – as long as the supervising attorney is barred in the state where the case is pending (or in another relevant state if it’s a merger/transactional issue), then it doesn’t matter from a legal standpoint if anyone else involved is admitted anywhere. But that’s always been true of any type of work – it’s always been the case that, say, paralegals are allowed to draft briefs as long as an admitted attorney ultimately reviews their work and takes responsibility for the actual submission.
The reason this is usually done by lawyers isn’t that there’s some legal or ethical obligation for lawyers to write briefs (or review documents), but because clients and firms generally recognize that this type of work is usually best performed by people with legal training.
Point being that this convention will not be impacted one way or another by how this case is ultimately decided. If the court ultimately ruled for the plaintiff here, clients and firms would be no more or less likely to want attorneys to do this type of work other than the extent to which having to pay overtime exacerbated the cost differentials between having attorneys and non-attorneys do the work (which will be minimal because most firms and agencies, as I understand, already pay overtime anyhow).Report
I used to be curious about some of this from the opposite direction. During my tech career, there were a couple of occasions when a sizable chunk of my filing cabinet was photocopied, and my hard disks imaged, as part of discovery in IP cases. I wondered who was reading my (occasionally exotic) tech notes and code and deciding what was relevant and what wasn’t. Largely off topic, the hard disk imaging system that was used was clearly Windows-based; I wondered what it did with the disks out of my Linux boxes.Report
If a machine could do it, why are they paying a human to do it?Report
Tradition.Report
Satire.
Machines still have a difficult time parsing Satire/Sarcasm. I work in a data field that enables Sentiment Analysis, and while the work might be just good enough to guess at who next to sell a lolipop… I wouldn’t want anyone’s life hanging in the balance.
Why Sentiment Analysis is Hard
Of course, this is just the tip of the iceburg… even e-discovery and natural language parsing comes well short of anything other than making the haystack smaller for the professional searchers.
Mr. Thompson said above that one might assume the rate of data is slowing? Nope, data is exploding (good for my business), and will positively go nuclear (maybe even nucular) with machine data tied to both the IOT and you personally. All those little apps you have… on your phone… with you all the time… while you are in the business locations of the apps you gave permission to?
On the other hand, all the additional location data, plus proximity data of other human devices might just start to provide enough context for machines to guess at Satire.Report