A question of Litigation/Practice Support (and more recently E-Discovery) certification is as old as the industry itself. After all the concept of certification is quite common in the legal field considering that attorneys and to a certain degree the legal assistants are required to be certified.  So why not Litigation/Practice Support or E-Discovery specialists?
 
There have been quite a few attempts to establish at least some kind of set of measures that would identify a degree of ability of a specialist to perform e-discovery tasks. Some of the industry providers attempted to fill the void, however (without passing any judgment on the quality of the programs), there has always been a question of a bias when the certification is offered by a service provider.  In addition, in a very pragmatic sense, law firms and corporations have been reluctant to pay for any programming that is put forward by a vendor.

In the recent few years, a combination of various sources emerged to provide excellent education in the field of E-Discovery (Georgetown Law naturally leading the pack), so it is no longer a question of finding quality education, but rather identifying a credible organization that would certify an individual as a specialist in the e-discovery field.

Most recently, Association of Litigation Support Professionals (ALPS) and Organization of Legal Professionals (OLP) proclaimed to be such organizations.  While focusing on several industry services, both organizations have their dedication to certification on the main web page and seemingly committed to fill the void.  ALSP and OLP have quite a credible list of Board of Directors/Governors and look very impressive at the first glance (I myself served on the Board of Directors of ALSP last year).
 
However, despite all the visual commitment, there has been very little in substance.  Why?  Certainly the make up of ALSP and OLP have something to do with it.  For example, ALSP, while seemingly an industry-wide association, was organized and continues to be run by the service providers who (let’s be frank) are more interested in meeting their future clients and cultivating existing relationships than create a certification test battery.  This is not an old-fashioned “vendor bashing,” but rather a reality as the performance for representatives of the service providers companies is measured by the business they generate.
 
It is my sincere opinion that the unbiased certification battery can only be created by the very people that work in the law firms and law departments as well as independent consultants that are not members of larger service providers.  The problem here of course is that all of us have very demanding day jobs.  In addition, especially in today’s economy, it would be virtually impossible for the law firms and law departments to be able to sponsor such an effort.

Solution?  As a hard core sci-fi fan, I’ve always dreamt of a day when the humans step on Mars and other planets of our solar system.  The budgeting of such projects remain a major hurdle, so there has been a lot of discussion of corporations sponsoring such monumental efforts in exchange for advertising space. Granted, the space shuttle covered with advertisement from various companies will look a bit cartoonish, but consider the benefits of such progress!  I suggested taking the same approach with the certification.

Surely, it would look much cleaner when the certification is not sponsored by the service providers at all, but I would argue that few would care that there is a long list of service providers’ logos on the “front page” of such effort.  After all, we are already accustomed to seeing it at most of the industry conferences and publications.
        
Recently, the question of necessity of e-discovery certification has been at the forefront of several discussions by the industry leaders.  My good friend and a dear colleague, Chris Dale, has argued for a while that the e-discovery certification is counter productive to the progress of the e-discovery industry.  Here is his take on it:

“Whilst I do not dismiss lightly the arguments in favour of some kind of professional training for litigation support staff, the arguments against it, or at least against it being made compulsory, are equally compelling. My primary objection is that it will act as a barrier to entry in a profession which desperately needs recruits. The second is that the target is the wrong one – it is the lawyers, not the litigation support specialists who are getting it wrong. Subsidiary questions arise as to who sets the syllabus and decides who passes and who fails. There is a parallel in the UK with nursing, another body of people whose skills are ancillary to a highly technical profession. The result of increased qualifications (and the academic achievement needed to enter the courses, to say nothing of the cost) has resulted in a serious shortage of nurses; in addition to those who no longer sign up, many of those whose skills are needed in the trenches are instead teaching and administering the courses.

If one looks at the well-publicised failures in the ediscovery world, the underlying component has almost always been the failure by lawyers to know and understand the law, not the absence of a paper qualification on the part of the litigation support people. The other obvious cause of failure is to do with resourcing -- poor project management and misuse or inadequate use of technology. These skills can be taught, certainly, and I do not argue against the need for increased knowledge and skills. My objection is that the paraphernalia of formal certification will take the eye off the hard practical skills which really matter as well as blocking the path to the new entrants whom we need – now.”

While the question whether the certification is necessary is still out there, there is enough interest to make it happen, however it needs to be done in such way that will benefit the industry as a whole, not just the organization that offers it or the sponsor behind it.

About George Rudoy

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