Pro Bono Litigation Support as a Marketing Tool

By Joe Howie

At the recent IPRO Innovations 2008 conference in Phoenix, Tom Tigh, president of SuperiorGlacier Inc., discussed a novel concept: Using pro bono work as a marketing tool. Though he was speaking primarily from the viewpoint of a vendor, the lessons from his presentation are applicable to litigation support professionals in a number of ways including career planning or introducing new technology in a firm.

About Pro Bono Legal Services
Pro bono legal services — often considered an ethical duty by lawyers — can occur in almost any area of the law, but typically involve areas such as asylum law, death penalty, health law, human rights, prisoner rights and immigration. Many AmLaw 500 law firms have formal programs encouraging attorneys to provide pro bono services, and the reasons for doing so go beyond ethical duty and the desire to give back to society.

Firms use pro bono opportunities as a recruiting tool to attract lawyers who want to be able to make a contribution in some area of the law without being penalized because of not producing as many billable hours as their contemporaries. Promoting pro bono work can help law firms obtain higher national rankings among law firm employers, and gain the confidence of clients who consider a firm’s pro bono history when deciding who to hire. Pro bono work also can be a great way for lawyers to build expertise in different areas of practice — experience that can help qualify them for new career paths or assignments.

Some firms target providing pro bono work totaling 3 to 4 percent of total billable hours. Because lawyers commonly bill hundreds of dollars an hour, this target represents a huge financial commitment by the firms. Tigh referenced numerous sources that track pro bono statistics:

Pro bono hours among Am Law 100 firms increased 58 percent between 2001 and 2006, according to data from ALM's The American Lawyer.
Since 2000, Latham & Watkins LLP has provided $260 million in pro bono legal services, according to the Latham & Watkins Web site.

Across the U.S., DLA Piper logged more than 109,000 pro bono hours in 2006, a 30 percent increase over 2005, a 2007 DLA Piper press release states.
Weil Gotshal’s pro bono policy calls for every all lawyers to perform 50 hours of pro bono work each year, which resulted in more than 87,000 hours of pro bono work in 2006 alone — the equivalent of almost 50 full-time lawyers.

Often, lawyers conduct pro bono work in areas that require or at least would benefit from litigation support services such as copying, scanning, indexing, hosting data, producing paper copies, project management and consulting. Rarely can the client afford these services, so the law firm or attorney handling the matter may have to pay for whatever services are provided. This is where Tigh’s unique marketing approach comes in.
SuperiorGlacier Pro Bono Program

Tigh recognized that lawyers doing pro bono work needed tools and services that their clients could not pay for and decided to offer those firms his own special pro bono program. Though he didn’t provide his services for free, he did offer many services at a greatly discounted price and provided his own consulting essentially gratis, requesting payment only for his travel expenses.

SuperiorGlacier, located in New York City and Washington, D.C. approached Kirkland & Ellis with the company’s special pro bono program offering. It turned out that Kirkland & Ellis, along with Sonnenschein Nath & Rosenthal were serving as co-counsel to the not-for-profit Tennessee Justice Center, which had sued the state of Tennessee on behalf of 650,000 underserved children for health care benefits.

In October 2006, SuperiorGlacier became engaged in the TJC matter to provide scanning, OCR, coding and hosting services so that all plaintiff co-counsel could work together on reviewing material produced by the state. Over the next few months, the effort expanded to include hundreds of boxes of scanned documents (local Nashville IPRO service bureau DSI also assisted in the scanning at discounted pro bono rates), thousands of documents coded and millions of pages hosted.

When ESI production was requested and the parties met to discuss the issue, Federal District Judge Catharina Haynes sequestered Tigh and the defendant’s expert without communication with the lawyers, and instructed them to work out the details. By the end of the day, a production protocol for ESI was established and the judge ordered it applied to the required productions.

Throughout 2007, various production decisions by the parties — and third parties — and rulings by the court added millions of additional pages to the repository. During this time, Tigh was certified as an ESI expert and given responsibility for assessing the Defendant’s ESI production process. This phase also included the appointment of a special master to resolve discovery questions and appeals of rulings that are still pending. By the end of the year, counsel’s efforts culminated in the ESI production of more than 10 million pages by defendants.

The next phase is the review of this material for use in the ongoing litigation. Both Kirkland and Sonnenschein continue to devote significant numbers of personnel and hours to this pro bono effort, and SuperiorGlacier continues to host and provide project management and other support services at pro bono rates. Because all counsel are amenable to using technology to help them increase efficiency, Tigh is recommending additional tools be considered to facilitate the massive review — Syngence (with the SynthetixND near-dupe identification and Synthetix search) and Equivio (for near-duping) — have offered to assist at reduced rates.

Outcome of Pro Bono Project
From Tigh’s perspective, the pro bono effort has been completely worthwhile. He has formed new relationships with partners and associates at the client law firms that will last forever. His company is no longer viewed as simply being a vendor; the firms have recommended SuperiorGlacier to others, and SuperiorGlacier has received new business at regular rates. As an added bonus, Tigh has received postcards from the children represented in the Tennessee case.

On a non-financial basis, it was an opportunity to give back to the community and to serve justice. It ended up being an opportunity to educate, learn and become an expert in different legal areas.

Guidelines for Pro Bono Marketing Effort
Tigh’s suggestions for conducting a pro bono marketing effort included:

Set a budget: Consider it part of your marketing spend, and discuss any charges with the client.

Line up partners: Anticipate your requirements and negotiate reduced click charges or licensing fees with your providers. IPRO, iConect and Syngence all reduced their normal fees for this matter.

Track your investment: You should have a profit and loss center for each pro bono matter and determine which costs will be tracked — and you should calculate what your margin is on that investment.

Distribute pro bono efforts: Don’t put all your pro bono work into one project; distribute them across multiple opportunities.

Specify criteria for projects: Tigh’s criteria were that he wanted opportunities to work for new clients and the firm had to be committed to the project.

Set reasonable expectations: SuperiorGlacier expected lower margins but not losses.

Lessons

What lessons could litigation support professionals take from the SuperiorGlacier experience? First, if lawyers at your firm or corporation provide pro bono legal services, you might see what kind of litigation support services their projects might need, putting aside for a moment the fact that their clients may not be able to afford regularly-priced services or software. Once you know what the needs are, consider approaching your regular or other vendors to see if they’d work with you on the project on a reduced fee basis. New vendors may be willing to work with you as a way to establish a relationship with your organization, and existing vendors may be willing to work with you as part of maintaining their account.

Assisting in pro bono projects could also be a way to try out some new technology that has not been accepted yet within the firm. Considering that lawyers are often giving up paying work to provide pro bono services, the firm itself may be willing to spend some money to minimize the time that it takes the lawyers to provide pro bono work.

Career planning is all about networking and knowledge. On a personal level, you could volunteer to do pro bono work in conjunction with the local legal organizations as a way to learn a new skill or to make contacts outside of your normal organization. Being a coordinator for local pro bono efforts could maximize the number of contacts you make.

References:

Probono.net
Georgetown University Center Pro Bono Institute
Vault Guide to Law Firm Pro Bono Programs, 2008 Edition
Vault Featured Pro Bono Law Firm Programs

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Author’s Note: My thanks to Tom Tigh for sharing his PowerPoint with me and for agreeing to let me write this article. And a special thanks to Jim King and his great organization for putting on a remarkable conference.