In a small city north of Delhi, India, purportedly the sixth most populous metropolis in the world, there is a skilled team of seasoned lawyers successfully reviewing documents for a U.S. company engaged in complex litigation. The Indian team's success is a direct result of the meticulous fashion in which it was assembled. While outsourcing is en vogue , navigating the cultural and logistical challenges inherent in legal analysis is critical to ensure long-term client service.
Indian Legal Training
Law School. Indian law schools produce about 200,000 lawyers per year, but to find Indian legal talent, one needs to first understand the country's methods for grooming its students. Individuals pursuing a career in law must gain admission to a five-year course of study at a university (in contrast to four years of college and three years of law school in the U.S.). Like UK students, Indian students receive an LL.B. (as opposed to an American J.D.). Undergraduates with three years of coursework can also apply to a three-year law school program to obtain the same degree.
Some of the leading institutions include:
a. National Law School of India University (NLSIU), Bangalore
b. The National University of Juridical Sciences (NUJS), Kolkata
c. National Law Institute University (NLIU), Bhopal
d. Panjab University-Faculty of Law, Chandigarh
e. Faculty of Law-Chandigarh University, Chandigarh
f. Institute of Law, Kurukshetra University, Haryana
Licensing. While there is no national law examination required to actually practice in India, upon graduation, prospective lawyers interested in appearing before a particular court, e.g., the Supreme Court of India, must take a national exam similar to the bar. Attorneys who pass this test are designated as 'Advocates on Record.'
Those who choose not to take the exam can simply enroll in the bar association of the state in which they intend to practice. Once the bar council is satisfied with the credentials and references of an applicant, the council accepts them as members. It is technically possible to have multiple state memberships, but it is more common to be enrolled in the bar council of a single locality.
Apprenticeship. On-campus interviewing is not very common or extensive for law school graduates in India. New advocates will often work as 'juniors' for more experienced advocates. Juniors with family in the law may also work in their relatives' offices. The length of the apprenticeship depends on how comfortable the attorney supervisor is with the skill of the apprentice, as most apprenticeships result in full-time employment. Also, most courthouses provide 'chambers' in which lawyers can practice, but these spaces are so difficult to obtain that many advocates are forced to wait hours outside of the courthouses for some privacy.
Although these apprentice positions are designed to provide graduates with experience, they do not offer a substantial income aside from expenses. For this reason, juniors compete for their own clients.
It is that competition, among other factors, that encourages Indian lawyers to seek out alternative career choices like document review in an outsourcing operation. In contrast to practicing in Indian courts, which requires long days in often stressful and uncomfortable environments, reviewing discovery for an overseas company provides excellent pay, exposure to cutting-edge technology and a regular schedule (which in India, like in the U.S., is attractive to individuals raising young children). In addition, women with family members expecting to serve as their apprenticeship mentors are particularly interested in opportunities of this nature because it allows them to obtain a certain level of independence from the 'family business.'
Build Slowly And Steadily
At least a year before training a single employee, plan to make a trip to the subcontinent to conduct due diligence and to interview prospective staff members. When meeting candidates, gauge their English proficiency and the effectiveness of their communication. Consider testing prospects for reading comprehension and conversation, and possibly requesting responses to hypothetical and detailed descriptions of the work involved.
Training. Like their U.S. counterparts, Indian lawyers should be trained extensively on the substance of the specific case on which they are focusing, as well as on document review database usage. They should also receive guidance on U.S. discovery protocols and privilege requirements. Organizations that patiently select a seed team of talented personnel and provide them with premium training realize dividends in the ability of the seed team to organically develop new hires.
Extensive and detailed training for offshore team members is critical because they are not only geographically disconnected from the main office, but also unfamiliar with American legal procedures and document review practices. To supplement case rule training, Indian attorneys should work alongside U.S. reviewers who can offer immediate feedback to streamline the process. The initial investment of time will establish a core segment of the workforce that can conduct future training and eliminate the need for U.S.-based lawyers to travel to India upon each new hiring event.
From a planning perspective, trainers should assign easier documents to employees developing a familiarity with established protocols. They can proceed to subsequent levels of complexity as their ability allows. Using consistent processes overseas will allow U.S. companies to manage the density of information they transmit abroad, while continuing to guarantee quality. Distance can be a hindrance in explaining the latest decisions and information to the Indian lawyers, but conference calls and other technological advancements eliminate much of that expanse. It also enables daily collaboration and the ability to create a knowledgeable quality control team that answers questions on a routine basis.
Loyalty. A career reviewing documents for a globally respected organization, for example, in a class 'A' building with air conditioning and computers, is highly coveted. In view of the fact that Indian attorneys performing these tasks are making a lifestyle choice, they tend to be more committed to their positions, resulting in a low rate of attrition.
Also, the typically detail-oriented nature of the attorneys on the Indian team makes them well suited to more time consuming and labor intensive tasks like privacy redactions. And, because attorneys in India are working when their U.S. counterparts are asleep, clients practically receive 24-hour service.
Despite the round-the-clock nature of discovery, document production is not as common in India as it is in the U.S. Although the country's Code of Civil Procedure allows courts to order extensive discovery if necessary and reasonable, it is not common in practice to engage in large-scale document production on the subcontinent. In addition, since discovery concerns do not rise to the same level of complexity and breadth, as in the U.S., Indian lawyers are not as attuned to the pitfalls.
Coordinating the U.S. and India Operations. Given that lack of institutional understanding and the continuous flow of work between the two countries, it is dangerous for the India-based operations of an organization to grow quickly without a solid foundation and a proper relationship with the U.S. team. If workflow management processes, and database and recordkeeping protocols are identical, coordination will be much more effective.
Defining Privilege. Outsourcing managers must be mindful of the fact that while the attorney-client privilege offers similar protections in India, communications between clients and in-house lawyers are generally not protected. Under the Bar Council of India rules, an advocate cannot be a full-time employee of any person, government, firm, corporation or concern, so in-house counsel are not recognized as advocates. Although most corporate communications are protected under confidentiality agreements, they are not privileged.
Managing E-Discovery. The scope of privilege is similar to that of the U.S., but the extent of privilege review is limited. Since parties in Indian litigation voluntarily provide their adversaries with 'relevant documents,' the requests are quite narrow and, therefore, it is unusual to have millions of pages of discovery.
Large-scale document productions do occur, however, and to address the nuances of modern litigation, the Information Technology Act of 2000 amended India's rules of evidence. The act defines and broadens the scope of electronic data and the requirements for producing digital material. Given the relative novelty of this type of data, Indian attorneys require coaching on its management and manipulation.
Misunderstanding U.S. Practices. Generally, language barriers can make document review more difficult, but it is the cultural differences that can be most often misunderstood. India, for example, does not use social security numbers and, therefore, lawyers raised and trained there do not understand the importance of that information. Companies seeking to begin India operations should provide insight into U.S. business practices and contrast them with those domestically. Also, lawyers trained in India need more coaching on the importance of privilege, privacy and trade secret issues.
Confidentiality and Privacy Issues. Protecting client trade secrets and generally private information is essential whenever corporate documents are off-shored, whether for bibliographic coding or more substantive processing. As such, providing assurance that work in India will be done in a protected environment with employees who are held accountable for protection of the data is essential for enhancing client comfort. By implementing reasonable and appropriate safeguards with continual reevaluation and process monitoring, Indian reviewers can be held to the same standard of confidentiality as their U.S. counterparts.
Final Note. Lawyers based in India ask incredibly detailed questions so their analytical abilities are quite high. Yet, it is their commitment, enthusiasm and genuine interest that make them an ideal team to complement a U.S.-based operation.
Diane Barrasso is founder and president of Barrasso Consulting LLC (www.barrassoconsulting.com). With both domestic (New Jersey) and offshore (India) operations, the firm specializes in the management, collection and review of documents in complex litigation.Arpita Mukherjee, Assistant Project Manager (Domestic Operations), handles employee training and team integration with offshore services.