Doing it better: Handling Big Tasks in Litigation Preparation

A white paper from Magellan's Law Corporation

White Paper

Three big problems
Three problems that plague many discovery tasks -- problems that cost money, break schedules, and reduce the quality of resulting work product.

Four simple rules
Four rules that will help you keep your discovery projects on schedule and within budget -- while producing high quality results.

by Jane Gennarelli

All but the smallest pieces of litigation involve a great deal of raw information, and most lawyers have learned the value of using technology to manage that information. Often, however, those same lawyers overlook the manual, human, and highly fallible processes that both feed and use that technology. These processes can make the technology significantly less effective and more expensive than it ought to be.

The weak link is rarely the technology

I have worked with litigation information systems for the past twenty-five years, in litigation that spans products liability, toxic torts, white collar crime, patent infringement, anti-trust, labor disputes, medical malpractice, and more. These cases have involved the broadest possible range of exposure -- from hundreds of thousands to billions of dollars. There were cases where the litigation team had to worry about only a file cabinet full of documents through cases that involved millions of documents and thousands of depositions.

Based on that experience, I came to the conclusion many years ago that the weak link in the process was rarely the technology -- it was rather one of these pieces to the puzzle:

As a result of missteps in those areas, critical information was often lost and a great deal of money was wasted -- because expensive time-keepers did low-level work, because people weren’t properly trained in the task they were assigned, or because work processes themselves were clumsy and inefficient.

Whenever I work on a case, the first thing I do is focus on the processes: Fix what is broken, write down rules and steps for handling tasks, train people in those processes, build in quality and cost controls, and get the right people assigned to each job. Every time, these are the results:

My experience tells me that these basic techniques -- these Best Practices -- should be applied to every case, every time, by every lawyer, paralegal or legal secretary involved -- both in law firms and the corporate law department.

Where Things Go Wrong

Let’s look at some of the typical things that can go wrong when law firms or law departments handle litigation information -- things that would go right if best practices were in place and were followed. I’m not going to list every problem you’ll encounter, but I’m going to talk about the Big Three.

Problem 1: Work fails to meet one or more of these expectations: Usefulness, Timeliness, or Costs.

Frankly, in my experience, it’s even more likely that there were never any clear-cut expectations in the first place! It’s just that when the work is complete, it is less useful, less timely, and more costly than it should be. This is almost always because someone jumped into a task without careful planning.

Best Practices Rule 1: Never set out on a project without first:

  • developing a schedule
  • defining a process
  • creating a budget

Then check up on all three things as you go: Are you on schedule? Does real-world experience tell you that you need to adjust your process? Are costs on track?

Check these things regularly, and if you spot a problem, fix it now. These problems can always be fixed if you catch them soon enough. They’re only real problems when you don’t catch them until the project is nearly complete (or the deadline is nearly missed or the budget already spent).

Problem 2: A task costs way too much, because the wrong people handled it.

Too often, tasks get bumped up to higher billing rate -- from clerk to legal assistant, from legal assistant to associate -- and it’s not because someone is trying to run up the bill. It’s because the task looks too complex to be handled at the lower rate; it’s because it requires a lawyer’s judgment.

In fact, however, large-scale tasks can often be broken down into sub-parts, and the pieces that truly require attorney judgment can be isolated and given to the lawyers, while the components that are largely mechanical or objective can be left in the hands of legal assistants and clerks.

I have seen this make a huge difference in such big tasks as massive document screening projects. I once worked on two environmental cases simultaneously where millions of documents had to be screened by my clients. In one case, I was able to convince the client that we could break the task into pieces and that legal assistants could be trusted with ninety percent of the “hours” that would go into the task. In the other case, the client insisted that only lawyers could be trusted with the task.

I don’t have to tell you how much more the second client paid for that work. However, you may be surprised by the quality comparison. Each of these screening projects involved multiple law firms, and one law firm was involved in both projects. This firm did quality control checking of the work in both cases, and found that there was significantly less re-work required in the case where legal assistants did ninety percent of the work.

Why? Because on one hand, the legal assistants were far more attentive to sub-parts of the task that made the lawyers’ eyes glaze over, and on the other hand, lawyers who were able to do lawyer work all day were more attentive and alert.

Best Practices Rule 2: For big projects, think them through first and figure out how you can organize and sub-divide the work so each task gets done by the right people.

Problem 3: Everybody knows what they’re doing. Unfortunately, they’re all doing something different.

This is a common problem in large tasks like document screening and document coding. It’s a potential problem in any task that requires multiple people to split up the job. Let me give you an example that may seem so obvious as to be trivial:

I was once asked by a partner to take a look at a simple document coding project that was being done by three legal assistants in his firm. It was costing his client a lot of money, and he wanted to be sure the money was being well-spent. I started by asking for a “coding manual” -- a set of rules for how the work was being done. I was told that there was no manual, since all the legal assistants had done this before. It wasn’t a big deal.

So, I interviewed the legal assistants to see what “rules” they were really following, and I discovered that they were all following different rules. A simple example: one legal assistant was recording the names of all companies he found in the documents. Another was recording only those she considered “important”.

Think of the partner using that database. Because corporate names appeared in the database, he would believe that he could effectively search on those names. However, the reality was that he could only search on some of the names. In other cases, he’d miss a lot of documents -- and never know it.

This trivial example illustrates two things:

Take this simple example and blow it up to one of those document screening projects I mentioned earlier, and you have a screened document collection that contains junk, is missing material that you want, and that doesn’t represent what you thought it represented.

Best Practices Rule 3A: Always create clear written procedures and standards for every task that must be split among multiple people, no matter how obvious the procedures may seem.

Best Practices Rule 3B: Procedures and standards must be updated as the people handling a task encounter unexpected issues that are not covered in the original procedures. Make sure everyone on the team knows about the decisions that have been made and operates under the new, revised procedures.

Best Practices Rule 3C: Train your people in the procedures you develop, and check their work, at least at the beginning, to ensure they understand the procedures and are following them correctly.

Where Can You Apply Best Practices?

A Best Practices program is not a technology issue. Best Practices provide a methodology for handling discovery materials and a strategy for accomplishing all the tasks required to effectively use information in your case. A Best Practices program will therefore cover information tasks from start to finish, both manual paper handling tasks and tasks that may incorporate the use of technology.

The smart thing is to have a Best Practice for each of the tasks you do over and over, year after year, case after case. Apply that Best Practice every time you do that task, across your whole law department or your whole law firm. That way, the practices become second nature for everyone involved:

The people doing the work will be more efficient and effective, because they do the task the same way, time after time. They know what they are doing.

The people using the work benefit twice: At the start of the task, they don’t have to “invent” a process -- it’s already in place and everyone knows how to do it. And, at the end of the task, they are comfortable with using the work product, because they know how it was done, they’ve used a similar product many times in the past, and they know it is reliable.

Best Practices Rule 4: Apply your Best Practices across the entire organization -- the biggest benefits come from generalized, organization-wide use.

As an exercise, think a few minutes about each of the tasks on the list below. Do you know if it’s being done according to a set of well-defined best practices? Look back at my four rules. Are those rules being followed on each of these tasks?

One more exercise: Think of other tasks you are handling that ought to have Best Practices applied to them. Can you think of some? Are you currently doing them in the “best” way? Is everyone doing them the same way?

Developing Best Practices

Assisting law firms and law departments in developing Best Practices programs is what I do for a living, and, frankly, there’s a Best Practice for how to do it. That process involves surveys of your staff, analysis of existing processes and methodologies, development of draft processes, review, and more.

Following are some do-it-yourself guidelines for developing a basic Best Practice for just about any task that you’ve got immediately at hand:

There, that’s a start. But it’s never too early to think about the big picture -- about a complete set of best practices. Start working on that now, and you can take your litigation information from just “good” all the way through “better” and get to “best”!

Copyright 2004 - 2006 Magellan's Law Corporation