In a small city north of Delhi, India — purportedly the sixth most populous metropolis in the world — a skilled team of seasoned lawyers is successfully reviewing documents for an American 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.
If you’re not already involved in offshoring legal work, at some point you may find yourself in a position of ramping up a legal team based in India. In this article we share what we’ve learned about working with attorneys who are based offshore in India.
Indian Legal Training: Some Background Facts
Indian law schools produce about 200,000 lawyers per year, but to find Indian legal talent, you first need to 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 United States). Like UK students, Indian students receive a Bachelor of Laws or LL.B (as opposed to an American Juris Doctor or JD). 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:
- National Law School of India University (NLSIU), Bangalore
- The National University of Juridical Sciences (NUJS), Kolkata
- National Law Institute University (NLIU), Bhopal
- Panjab University- Faculty of Law, Chandigarh
- Faculty of Law-Chandigarh University, Chandigarh
- Institute of Law, Kurukshetra University, Haryana
Licensing
While there’s no national law examination required to practice in India, upon graduation, prospective lawyers interested in appearing before a particular court, such as 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’s technically possible to have multiple state memberships, but it’s more common to be enrolled in the bar council of a single locality such as Haryana, Punjab, West Bengal, Karnataka, Maharashtra or Gujarat — to name a few.
Apprenticeship
On-campus interviewing isn’t 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. There’s no fixed time period for these apprentice positions. Typically, the apprenticeship could last anywhere from a few months to a few years. The duration depends upon the personal relationship between the senior and junior attorney, skill level and performance. The senior gradually starts handing more complicated matters to the junior advocate, and the nature of employment changes from the junior being an apprentice to becoming an associate.
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 attorneys typically have private offices or share an office with partners, the chambers available in the courthouses are considered prime spots, especially since attorneys tend to spend the majority of their time in court. This is an office in the center of action where advocates can obtain their own clients, those people who are at the courthouse without representation. It’s also quite common for clients to look for advocates available in the courthouse. In such scenarios, if the advocate doesn’t have a chamber in the court, he or she must be physically present at the court and away from his or her office to solicit clients effectively.
Although apprentice positions are designed to provide graduates with experience, they don’t offer a substantial income aside from expenses. The compensation an apprentice earns depends on the type of apprenticeship. In large law firms, juniors can earn between 10,000 and 15,000 rupees (about $220 to $340) in a month. However, for individual apprenticeships, the amount varies from 5,000 to 10,000 rupees plus expenses such as travel and other case-related costs. Or the payment structure could be performance-related, with a fixed amount of money and commission from the cases the junior handles for the advocate.
The juniors often compete for their own clients to supplement their income, to gain additional experience and eventually to build their own client base. In fact, many juniors take nothing more than expense reimbursements from their senior advocates, in hopes of later resigning the apprenticeship with no obligation.
It’s this intense competition, among other factors, that encourages Indian lawyers to seek alternative career choices, such as 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 United States, is attractive to people with a family). In addition, women who have family members that expect them to serve as apprentices are particularly interested in opportunities of this nature because it allows them to obtain a certain level of independence from the “family business.”
Families often have their own solicitor firms, legal firms or other members of the family who are advocates to join these family-run practices. There are many social and cultural issues involved when a member desires to leave the family practice to work independently. In Indian culture in general, any family disassociation of this sort isn’t well-accepted. By choosing to work in a completely different legal field such as e-discovery, an attorney can effectively sidestep any social disapproval the family might have for the attorney not joining the family’s legal practice.
Once You Decide to Go Offshore: Build Slowly and Steadily
At least one year before training a single employee, plan to make a trip to India to conduct due diligence and interview prospective staff members. When meeting candidates, gauge their English proficiency and the effectiveness of their communication. Test prospects for reading comprehension and conversation. Request responses to hypothetical situations and get detailed descriptions of the work candidates have done so far and their actual involvement in it.
Higher education in India is conducted in the English language, so it’s safe to assume that advocates who have completed their law degree are proficient in English. Moreover, when our firm hires new review attorneys, we put candidates through legal hypotheticals that must be completed successfully before we’ll consider making an offer. It’s the same test we administer to American attorneys. These testing scenarios provide a good picture of the candidate’s command of English, communication skills and legal knowledge proficiency.
Training
Like their US counterparts, Indian lawyers should be trained extensively on the substance of the specific case on which they are focusing, as well as on the particular database tools being used for the discovery process. Trainers should also spend time discussing American 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 develop new hires.
Providing extensive and detailed training is critical since the offshore team is not only geographically disconnected from the main team but it’s also unfamiliar with American legal procedures and document review practices. In addition to case rule training, the training team should work alongside US reviewers who can offer immediate feedback to streamline the process.
The training at the initial stage should ideally cover not only the cut-and-dry case guidelines for review, but also an overall picture of e-discovery and what it entails in efforts to familiarize the core team about these types of projects. This training is likely to be slightly longer than the amount of time spent training American attorneys.
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 US companies to manage the density of information they transmit abroad, while continuing to guarantee quality.
Distance can be a hindrance in explaining the latest legal decisions and information to India lawyers, but conference calls and other technological advancements, such as Web conferencing, can bring teams together. Having all staff members both on-shore and offshore access the same software programs, databases and communication tools enables all parties to refer to the same documents simultaneously to discuss problems. In addition, it allows for daily collaboration and the ability to create a knowledgeable quality control team to answer questions on a routine basis.
Loyalty
To many Indian attorneys, a career reviewing documents for a globally respected organization 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.
Culturally, the typically detail-oriented nature of the attorneys on the India team makes them well-suited for more time consuming and labor intensive tasks like privacy redactions, which require a higher level of training, detail orientation and commitment. Depending on the nature of the case material being reviewed, we often deal with a lot of personal/private information. This process involves redacting the personal/private identifying information from the documents where they appear, including social security numbers, home addresses, home phone numbers, etc.
An on-shore/offshore work environment can also facilitate faster response times. Due to the time difference between India and the United States, Indian attorneys work while their US counterparts are sleeping.
The Challenges of Managing Onshore-Offshore Legal Teams
Despite the around-the-clock nature of discovery, document production isn’t as common in India as it is in the United States. Although the country’s Code of Civil Procedure allows courts to order extensive discovery if necessary and reasonable, it isn’t common to engage in large-scale document production on the subcontinent. In addition, since discovery concerns don’t rise to the same level of complexity and breadth as in the US, Indian lawyers aren’t as attuned to the pitfalls.
Coordinating the United States and India Operations
Given a lack of institutional understanding and the continuous flow of work between the two countries, it’s dangerous for the India-based operations of an organization to grow quickly without a solid foundation and a proper relationship with the US 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 can’t be a full-time employee of any person, government, firm, corporation or concern; so in-house counsel aren’t recognized as advocates. Although most corporate communications are protected under confidentiality agreements, they’re not privileged.
Under US law, any communication between the attorney and client is considered privileged in the sense that it can be withheld from the process of discovery in litigation. Confidential communication in matters of business doesn’t allow for the same security. In the United States, in-house counsel has the same status as an attorney actively practicing law. However, since in-house counsel isn’t considered an advocate in India, any advice the India company receives from its legal department won’t be covered under the attorney-client privilege umbrella. That’s why it is so critical to explain to the India advocates that legal practices and rules regarding this aspect are very different in the United States.
Managing E-Discovery
The scope of privilege is similar to that of the United States, 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’s 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 has amended India’s rules of evidence. This 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.
Since e-discovery involves online review of documents, familiarity with handling digital materials is essential. This includes an understanding of how and where the data is stored and processed, possible problems that can surface in the course of review, and how to either fix these problems or bring them to the attention of the correct department. It helps with understanding how all collected materials fit into the review process and how to follow case-specific guidelines.
Misunderstanding American Practices
Generally, language barriers can make document review more difficult, but it’s the cultural differences that present the biggest misunderstandings. India, for example, doesn’t use social security numbers; therefore, lawyers raised and trained there don’t understand the importance of that information. Companies seeking to begin India operations should provide insight into American business practices and contrast them with those domestically. Also, lawyers trained in India will need more coaching on the importance of privilege, privacy and trade secret issues. Continuous feedback and discussions of US legal procedures and practices during training is the most effective way of addressing these issues.
Confidentiality and Privacy Issues
Protecting client trade secrets and generally private information is essential whenever corporate documents are sent offshore, whether for bibliographic coding or more substantive processing. As such, clients need assurance that work in India will be done in a protected environment with employees who are held accountable for protection of the data. 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 US counterparts.
The first requirement for confidentiality protection is the ability to rely on the vendor chosen for the work. It’s vital to choose a consistent and reliable vendor to ensure the best chance of protecting classified information.
Also, when any US- or India-based attorney begins working on a case, he or she should be required to sign a confidentiality agreement, which will forbid them from sharing any case-related information with any party outside of the case. Having a good understanding with the management team that is running that particular operation is a positive indication that the agreement will be honored.
Other steps to implement:
- Enforce policies to make certain no case-related materials leave the premises.
- Provide a discreet location for the team to meet and discuss project-related issues.
- Store case materials in a secure place.
- To prevent unrestricted dissemination of information, block the reviewer’s right to print out case materials.
A Final Note
Lawyers based in India ask incredibly detailed questions; their analytical abilities are quite high. Yet, it’s their commitment, enthusiasm and genuine interest that make them ideal participants to complement an American operation.
Useful Links
Barrasso Consulting
www.barrassoconsulting.com
