Modern litigation is grossly inefficient in the classic economic sense according to respected time-tested management principles and by any metric used to evaluate return on investment.
Self-styled “litigators” regularly re-work problems already solved, look in arcane places for information already readily available at hand, and constantly fail to understand, much less evaluate the long term strategic implications of the litigation.
A planned sequence of work is fundamental to managing litigation. There is an order of operation or a checklist of things to do every time, but many, if not most litigators fail to develop a true litigation strategy and then plan the tactics to further the goals of that strategy. Perhaps it is the culture of hourly billing.
Litigation is controlled by rules. Structured processes and checklists should be natural elements of the litigation planning process.
Every lawsuit is different. Litigation evolves. There is always pressure for immediate action. Nevertheless there are “lean” approaches to litigation built on simple principles:
- Do not do what does not have to be done. If the litigation manager cannot explain what a task is and why it should be done, eliminate the task.
- Use the classic “effort/impact” matrix – prioritize effort in terms of the strategic objective of the litigation.
- Confirm and validate all tactical assumptions even those upon which the strategic plan is based.
- Use simple checklists to keep track of all the relevant steps, operations and tasks of a lawsuit.
- Be Realistic. Map out every step in the litigation process and determine in advance the most efficient and cost effective way to complete each task.
- Use Project Management techniques such as Gantt charts, Program Evaluation & Review Techniques (PERT), and the Critical Path Method (CPM).
- Determine how the work actually gets done and most important, by whom.
The elements of litigation management
Litigation management begins with a summary description of the facts and a chronology of events; creating electronic and hard copy libraries of key documents categorized by relevance, privilege and other subjective criteria; creating and maintaining paper and electronic files; developing and maintaining a privilege log; and establishing a cybersecure electronic document depository.
What is often overlooked in the midst of frenetic and often frantic document-related activities is a clearly stated, well-defined statement of goals and objectives for the litigation, a strategic plan to attain those goals and accomplish those objectives, and a time and expense budget.
Large and complex Litigation
Large lawsuits have unique operating and logistical challenges created by their size. Complex litigation has unique operating and logistical challenges as well and large complex lawsuits concatenate the problems of both.
Managing large and complex litigation requires application of the science of collective intelligence to ensure that everyone who works on a matter benefits from everyone else also working on the matter – sometimes referred to as the “wisdom of crowds.”
While the Internet has made it easier and more convenient for all the individuals involved in litigation to communicate, collaborate, cooperate and control matters it creates grave security risks which must be addressed before implementing internet or Cloud litigation management “solutions” particularly when they are managed by third party vendors not directly party to the litigation.A great deal of the time spent during litigation involves reading documents, but the hourly billing culture provides no incentive to optimize efficiency in that activity.