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If You Don’t Understand eDiscovery, You’re Not a Player: Q&A with Baylor Law’s Jim Wren

Joey And Jim Talk About eDiscovery
Level 2 Legal CEO Joey Seeber visits with Baylor Law Professor Jim Wren.

On a recent trip through Central Texas, I stopped in Waco at my alma mater to visit with Baylor Law Professor Jim Wren. Jim was a successful 25-year trial lawyer before leaving to become Baylor’s professor of Practice Court, the renowned and mandatory capstone course that makes real lawyers out of law students. Jim is also spearheading the development and implementation of the first-in-the-nation LLM in litigation management.

As my own work at Level 2 Legal is founded on the tectonic shifts in the delivery of legal services – shifts clearly driven by the speed and availability of information, technology, and innovation – I was excited to hear about the new LLM and wanted to find out what was driving Baylor’s decision to launch the new degree. I also know that Jim Wren is a visionary and an entrepreneur at heart. If he is behind it, it’s going to be good.

Jim and I had lunch at George’s and then I listened while he shared his wise words about all kinds of things:

  • A “true confession” regarding the historic quality of education in legal economics (“Miserable.”)
  • How students today differ from when Jim and I were at Baylor Law (Hint: work/life balance)
  • His view of students who are not on time (“There is no late.”)
  • His take on the importance of eDiscovery proficiency (“If you don’t understand eDiscovery, you’re not a player.”)

Driving home and thinking about our visit, I was more encouraged about the future of lawyers who want to make a difference in our profession than I have been in a long time. I felt a kindred spirit in Jim’s sense of mission and urgency addressing the challenges and opportunities ahead for all of us.

My sense is that there’s something bold brewing in Waco – and it’s not just the beer at George’s.

Q&A with Jim Wren

Joey: First, tell us why you decided to leave a successful private practice to teach at Baylor Law School?

Jim: It was by happenchance. I was asked to step in to teach Practice Court one time, taking a sabbatical from my firm, then I never left. I have loved the opportunity to work with smart, highly motivated students, and I feel like I’m in a place where I have an opportunity to really make a difference.

Joey: What changes have you seen in students since you began teaching several years ago?

Jim: I think students tend to be students. The complaints that I made as a student, I still hear from my own students: “Surely practice can't be as hard as what they're doing to us here in the law school.” In fact, it's really just the opposite. It’s a lot harder out there. That's been true all the way through.

There are a couple of things that I think possibly are generational. There's a little more emphasis in this generation on work-life balance, whatever that means to that individual. Work and life don’t always stay in balance. At any given point in time, you're having to focus on what matters most, and that ebbs and flows.

So, when people think, “I should always have ‘x’ amount of free time,” it just doesn't always work that way. And there may be more emphasis on that in this generation – for good or for bad.

Another thing that is probably reflected currently is a deterioration in writing skills. This is not unique to Baylor. It's not unique to law school. There’s a lot of research showing that it may be a result of increased emphasis of reading and interacting on screens as opposed to reading and writing in more depth. At Baylor Law, we have become more deliberate about addressing writing skills.

Those are some specific differences. But all in all, people are still people.

Joey: You talked about the change in students. What shifts have you seen in the legal landscape in the last five to 10 years?

Jim: I’m seeing an increasing retreat from representation of the middle-class market. You're seeing large firms focused more and more on the clientele that can pay them. That clientele has always been there, but now it is increasingly a more exclusive part of the clientele to those firms. Individuals increasingly are pressed out of the legal market.

We're seeing that somewhere between 60 to 80 percent of the American public, rightly or wrongly, considers themselves unable to afford an attorney. That is causing a change in our legal profession as firms are increasingly scrambling for the top end of the market and leaving a lot of the middle market unserved.

And there's certainly been a change in litigation. Litigation costs have been one of the factors. Not the only factor, but one of the factors creating a decrease in civil trials – the cases that actually go to trial – as opposed to being resolved short of trial. Resolution short of trial is not a bad thing – as long as you're not leaving your client short in the process. But increasingly as attorneys starting out have found themselves unable to get civil trial experience, that results in a fear. And with a disproportionate level of fear of going to trial, ultimately those attorneys never get trial experience, which means that they are at a disadvantage in negotiating deals with the attorneys that truly do have a proven ability and willingness to go to trial.

Joey: Both of the big changes you mentioned have to do with the cost of litigation. These are economic factors impacting access to justice, and then impacting the ability for the profession as a whole to be experienced as they go to trial for their clients.

Jim: That’s exactly right. When you talk about access to justice, I have great concern for the legal profession, but I also have great concerns about the fundamentals of our democracy. Our democratic system depends on the rule of law, and when you've got people feeling like they're priced out of meaningful representation, then that rule of law becomes something that benefits someone else. If people have the sense the law does not benefit them, then how long are they truly supportive of it? Our justice system is integral to our working democracy.

Joey: With this in mind, what do you see as the greatest potential disruptions?

Jim: I'm not sure what I would rank as number one, but if there is a failure to meaningfully deliver legal services to individuals then something is going have to replace that. Whether that is some sort of online dispute resolution that effectively takes juries out of the equation and takes the opportunity for average people to be called to the courthouse and to see our legal system at work, that's unusually disruptive. To the extent that the legal system is pricing itself out of the reach of people, you're also going to see non‑lawyers step in to pick up the slack in that sort of way. If we continue on, it is inevitable that at some point lawyers will no longer be the only provider of what we think of now as legal services. We've already seen that occurring outside of the U.S., and I don't think we will stand as the lone exception indefinitely if we don't right our own house in terms of providing cost-effective legal services.

Joey: Speaking of the growth of non-lawyers in the industry, in my work delivering legal services, it's inevitable that non-lawyers are part of the system now. How are you thinking through how to make paraprofessionals an asset for lawyers and their practices?

Jim: I'm glad you asked that because that is part of the developing discussion. About a year ago we ran a panel consisting of legal industry leaders and judges around the nation. One of the major topics we focused on was innovation within the legal profession. What should we be doing to address that? The short answer is we're having those conversations, but we haven't figured out what that needs to look like yet. We do not want to be the ones with the proverbial head in the sand. We want to be figuring out how are we going to make a difference for the public and for the legal profession, and what does that kind of interaction, what does that kind of training of non-lawyers look like? That conversation is ongoing, though we don't have the conclusions yet.

Joey: You’ve been quoted as saying "There's no such thing as on time, either you're early or you're late.” Where did that come from?

Jim: I'm not sure exactly. There is nothing that I do in the practice or teaching of law that I have not begged, borrowed, or stolen from those who are more experienced and smarter than I am, so I'm sure that came from somewhere – probably judges because I've heard judges say that. And though it’s not necessarily true of everything in life, when you're talking about courtrooms and key meetings on behalf of clients, it’s actually quite right. There is no such thing as on time. You're early or you're late. You're there prepared and when the judge walks in, you're not scrambling to get your briefcase open and know what's next. You're already set, primed, ready to go.

Joey: What happens if someone's late to Practice Court?

Jim: There is no late. I've just finished the first half of Practice Court. I did not have a single student walk in late during the quarter. On the rare occasion I've had someone walk in late, of course they're immediately sent back out. I think the message is well understood. There is no late.

Joey: Being able to manage your time is obviously a huge part of being a successful lawyer. The work we do at Level 2 Legal is as much about saving our clients’ time as it is saving them money. What are the ways you see technology increasing as a time-saving mechanism in the legal world today?

Jim: I can't predict all of the ways, but obviously I see it with the increasing application of data analytics and artificial intelligence. I don't regard that as a threat to attorneys as long as attorneys recognize that anything that saves us time and allows us to use our specialized knowledge and judgment more efficiently is a good thing, not a bad thing.

Joey: Do you think we’re going to reach the point someday where technology will replace human lawyers?

Jim: No. Now, if we think of lawyers as being just the repository of specialized knowledge and they’re the only ones who understand the law – then that absolutely changes. That goes out the window because we can go to computers for that now. Artificial intelligence will tell us the direct legal answer to a specified question, maybe even suggesting course of action. But not when we think – when we recognize – that the highest, greatest function of lawyers is as a leader, guide, counselor, where there is not just a technical answer required, but there is judgment required. How do we deal with other people? How do we really persuade and lead? It’s people to people, and lawyers provide that function. I think in the past we've understood the highest and greatest role of lawyers to be that guide, leader, counselor, and ultimately, that individual who's in the rescue business as an advocate – to come alongside and fight for somebody.

Unfortunately, I think we've gotten away from that to a certain extent with increased emphasis on specialization. Specialization is fine as long as it's not specialization alone. As long as we understand our role is to guide, lead, counsel, and fight for people then there will always be a role for those kinds of lawyers.

Joey: Let's talk about the new Baylor LLM program. Why did Baylor Law decide that now is the time for an LLM in litigation management?

Jim: There is a huge need to address economics in the legal profession generally for the reasons I've been saying. And within the legal profession, the wild west of legal economic management is litigation management. As you well know, it's not like you can sit down and say, “These are all the steps we're going to take in this litigation,” and then just go execute. You’ve got somebody on the other side pushing back trying to disrupt your plans, to implement their own in opposition to you. It is a constant series of being proactive and reactive making adjustments. The economics in that sort of environment takes special understanding and tools. Baylor has always emphasized litigation, so, who better to take this on than us?

But I'll also tell you – this is a bit of a true confession – legal education as a whole, including Baylor, has done a miserable job through the years of teaching the management of legal economics. At Baylor, I think we do an outstanding job – in my view the best in the nation -- of preparing lawyers to develop court cases well and to navigate the courtroom and litigation environment. But even here, we have traditionally not taught how to do that with a true eye to economic efficiency, and the LLM in litigation management is (intended) to remedy that.

We're thinking somebody has got to take this on. We’ve probably got a head start, but we have much, much to learn and we're in the rapid learning phase. We're going to bring many of these concepts right back into our JD program, but we’re doing this at the LLM level because it gives us the opportunity to go get national thought leaders who are doing this well and pull them together.

Joey: So, tell me about the program itself.

Jim: It's a 14‑month program designed for lawyers already practicing. There's a minimum three‑year practice requirement. It is an executive LLM program designed for those who want to excel in practice, either in‑house with companies or as outside counsel who are often responding to the pressures of in-house counsel to be predictable in their litigation management and to produce outstanding results. It is directed very much to the people in‑house and outside who are already doing this.

We're not asking people to leave their practices. Normally if they were enrolled in a full-time basis, it would be a full-time, nine‑month program – the traditional academic year. By stretching it out to 14 months we make it manageable – still extra work for them – but manageable while they're in practice.

We have been talking to GCs, in-house counsel, outside counsel – those managing sophisticated litigation all over the nation – asking two basic questions. First, what would you want you or your people to gain an understanding of through this program? And secondly, who are the best already doing it? We want to bring the national thought leaders into this program. This is all about exposing young attorneys – I'm talking about those typically in their first decade or decade and a half of practice – and accelerating their learning curve so that they become among the best in the nation.

Joey: Talk a bit about the role of eDiscovery in the development of the LLM program.

Jim: Well, eDiscovery is huge because, as you well know, that is where a disproportionate amount of the workup of the case goes. I teach my students that everything procedurally about putting a case together is important. But where you live when you're involved in litigation is in discovery. And in discovery that means electronic discovery because that's where the information is. The world is in digital form now, and if you do not understand how to access and manage information electronically, you're not a player. So, it is a vital part of our program. Litigation today turns on electronic discovery. It's obviously a major focus for us.

Joey: What gives you the most encouragement as you think about the future of the legal profession?

Jim: We're not ignoring what needs to be done. My encouragement is by the nature of what we're focusing on here at Baylor, addressing these issues. We have contact with thought leaders all over the nation that tell me Baylor is not alone in focusing on how to address these issues. By virtue of having contacts with people that are focused on how we're going to address these issues, I'm encouraged. There are lots of key people who are not standing still – who are saying, “We've got to recognize where we have fallen behind and we have got to fix it.” And that brings great encouragement.

Joey: What do you hope to say about the LLM in litigation management program 10 years from now?

Jim: That the people who are truly making a difference in major firms, in corporations, companies, and in terms of taking the same principles and applying them to innovative consumer-facing firms, those are our people. We're putting the difference makers in place. That's my hope. That's what I want to see.

About Jim Wren

Jim Wren is Professor of Law at Baylor Law School where he teaches Practice Court and is spearheading the new Baylor Law LLM in Litigation Management. Please email Jim to find out more about the LLM program.

About Joey Seeber

Joey Seeber is CEO of Level 2 Legal Solutions, a Texas-based leading provider of eDiscovery and legal solutions, specializing in modern managed review, outsourcing, and consulting for law firms and in-house counsel. You may reach Joey here.

This interview has been condensed and edited for clarity and length.