Bensen & Myers on Litigation Management: Is the Litigation Team being Managed Efficiently?

Intro to Chapter 2 of Bensen & Myers on Litigation Management: Is the Litigation Team being Managed Efficiently?

Critical to effective litigation management is the maintenance of a stable and highly motivated litigation team. Critical to the maintenance of a stable and highly motivated litigation team, in turn, is the proper management of information. While the day-to-day work concerning such matters is the province of Outside Counsel, an understanding of what that work involves will greatly facilitate Inhouse Counsel's role of ensuring that the litigation is managed in a cost-effective manner. Moreover, as discussed in a later chapter, many of the tools that Outside Counsel can use to manage the flow of information to team members can serve double duty as the primary mechanism for concise, timely reporting to Inhouse Counsel concerning the status of the case.

Decisions regarding the size of the litigation team, which can have a profound impact on the litigation, deserve special attention. The substantial undue expense resulting from overstaffing is widely appreciated. Less well appreciated is the degree to which understaffing has a deleterious affect on quality. It is natural that a litigation team will be quite small at the litigation's outset because at that stage, there is often only a limited amount of work that can be done. However, whether due to a shortage of staff, reluctance on the part of Outside Counsel to spend time managing a larger group of people, or a desire to maintain the appearance of cost sensitivity by maintaining a small team, growth in the litigation team will often not keep up with growth in the workload.

This artificially restricted size can cause several problems. For instance, optimally, the team's workflow should be as even as possible to make sure each project gets full attention. The smaller the team, however, the more likely the flow of work will be disrupted by other events and happenings, such as sickness, employee departures, and the demands of other work. This results in frantic and poorly managed periods of "catching up" to make up for lost time.

A small team also means a small number of people sufficiently knowledgeable about the case. Early in the litigation, this may not present a significant problem. However, later on, when the litigation reaches a point where a bigger team is needed, the existing team will frequently be in a Catch-22: it will need additional people knowledgeable about the case to work on substantial projects, but there will be no one who has worked on enough substantial projects to be sufficiently knowledgeable about the case.

An unfortunately common practice in litigation management is assigning work on an ad hoc basis without a focus on team building, that is, assigning projects to whatever attorney (or paralegal) happens to be available at the moment without consideration of whether the attorney has worked on the matter before or will be available to work on it again. The ad hoc approach should never be a regular practice. In fact, the very notion of maintaining a litigation "team," i.e., a group of people who have come to have a sense of ownership of the case through learning, developing, and maintaining the necessary case-pertinent information (e.g., facts, law, and names and roles of various individuals associated with the subject matter of the litigation) and who are available as the core group of people to perform the work of the case, stands in stark contrast to the "ad hoc" approach to litigation management.

The "ad hoc" approach also stands in stark contrast to another basic management technique: planning ahead. Instead of managing the case merely by reacting to events, Outside Counsel should anticipate upcoming work and plan for it to the degree possible. Doing so will permit Outside Counsel to use what would otherwise be downtime to make progress on upcoming work and thereby make sure that such work gets full attention rather than rushed treatment after a period of neglect. It will also allow Outside Counsel, freed from any need to commit extra resources to avoidable crises, more resources to deal with truly unexpected events.

Central to building an effective team is proper management of the flow of information, which a litigation produces in no small amount. Were litigation a machine, its raw materials would be client's employees, plaintiff's deponents, defendant's deponents, plaintiff's evidentiary documents, defendant's evidentiary documents, internal memoranda and emails, external correspondence, pleadings, discovery requests, discovery responses received, perhaps a site inspection or physical examination, expert opinions, local rules, statutes and, of course, case law. Each is, in its own way, a package of organized information. The "machine's" end products would be discovery responses served, motions, testimony and arguments. Each also is a package of organized information, but only distantly related to the raw materials.

Operating the "machine," of course, are those charged with the litigation process: the lawyers, paralegals and other professionals who may be brought in from time to time to assist. In a sole practitioner shop, making sure the lawyer has all of the necessary raw materials when needed is inherently streamlined: all the raw materials are provided to the lawyer who then produces all of the end products. Where more than one lawyer is involved, however, the situation is more complicated. True, all of the raw materials could be provided to each attorney for further processing. Even putting aside logistical difficulties of such an approach, it is easy to see that doing so is not an efficient use of resources. It makes far more sense for a body of raw information to be distilled down by individual team members for use by the team as a whole. The challenge then lies in organizing the distilled-down bodies of information in a way that facilitates retrieval and updating.

In contrast to organizing the raw information, which can be labor intensive, but is not terribly difficult, or organizing the end products, which should not be difficult in any respect, organizing the distilled-down or interim information raises some of the fundamental challenges inherent in litigation management. That interim information, of course, will consist of legal analyses and factual development, but will (or should) also consist of scheduling information, "to do" type information, definitions of terms, identification of people and contact information. The goal is both to make sure that team members have the information they need when they need it and that it be stored in a manner that makes it easy to update and distribute to team members. The question then becomes: What is the best way to accomplish that, especially in view of the nonrepetitious nature of litigation?

On one extreme is attempting to put all of the information in one place, such as by distilling it down to a "position paper." Such a single document approach has a number of disadvantages. For one thing, it results in a very long document, typically so long as to be virtually unusable. For another, because of the difficulty of updating such works to reflect ongoing developments, they are uniformly outdated before the ink is dry. The reality is that such papers are all about input rather than output and do more to run up bills than to provide team members with up-to-date information in a user friendly format.

The other extreme is to distill down information only on an as needed basis. There are several problems with this approach as well. For one, "as needed" usually means that the work will be done on a short deadline, negatively affecting the quality of the work. The "as needed" approach also typically results in overlapping work: a memorandum on topic A and B to meet one deadline followed several weeks later by an entirely new memorandum on topics A and C. Aside from the unnecessary cost involved in such duplicative work, the collection of materials derived from the "as needed" approach, because of overlap and inconsistency in form, is extraordinarily difficult to organize in a meaningful way for future use.

Outside Counsel should use a middle-ground approach between these two extremes. That is, case information should be distilled down not to a single repository, but to a series of carefully crafted and complementary repositories. Each should be complete for its intended purpose. Together, they should provide a complete picture of the case. Doing so will limit the amount of information an individual attorney will have to wade through to find a particular answer while at the same time putting the entire wealth of information gathered in the case at the attorney's fingertips. Within each repository, information should be provided in an easy-to-read manner. Further, the information should be organized in a way that permits information to be easily added, deleted, or revised. 

Concrete methodologies and tools to address staffing issues as well as case evaluation, budgeting, document collection, review and product, trial preparation and other facets of the litigation process are provided in Bensen & Myers on Litigation Management.

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