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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.
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.
According to research by a third party litigation management company, lawyers only spend 12%—seven minutes out of every hour spent reading documents deciding what to do about the document and then doing it. Reading documents is certainly necessary, but it doesn’t create value on its own. 88% percent of the time reading documents is unavoidable waste because it must be done. Unavoidable waste, however, is only unavoidable the first time. Each re-reading of a document represents at least an 88% percent avoidable waste of time. The larger and more complex the lawsuit, the more avoidable waste.
Process engineering — the design, operation, control, and optimization of chemical, physical, and biological processes — has been a well established element of modern manufacturing and business operations since the early time and motion studies of Taylor and the Gilbreths led to methods engineering and modern mass production in the 1920s.
The goal of process engineering is to do something only once, do it right the first time, capture all of the possible benefits from the work done and then move on. However, this is counter to the culture of time-billing lawyers and their law firms particularly during litigation.
Lawyers Wasting Time; but billing for it
While law firm management believes that more eyeballs reduce the likelihood of a mistake —particularly when each pair of eyeballs is billing the time they spend looking —decades of research establishes that more mistakes are introduced through repetition than are removed by repetition. Quality never results from doing a task repeatedly, but rather from doing it right the first time. Quality management programs are an exercise in engineering everything to achieve that result.
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.
For major litigation involving large numbers of documents, the document repository and document management computer center must be located at the clients facility and accessible to counsel only subject to appropriate security precautions maintained by the client. Company management must have full knowledge of who is accessing their documents, which documents are being accessed, and under what circumstances. Document scanning and data conversion should be provided by the Company in the way that is most cost effective for the Company not most profitable for the lawyers.
Law firms have no business becoming involved in document scanning. Under no circumstances should any business allow documents to leave Company premises and be housed at a law firm. To pay a law firm for the cost of providing a secure depository for documents is ill-advised. Law firms are not in the business of providing security and have no expertise in this area.
Lawyers add work product to the document data base by annotating and consolidating the documents into meaningful information—meaningful to the client, counsel, and the courts.