Do Litigation Team Members Have Access to the Information They Need?

Do Litigation Team Members Have Access to the Information They Need?

The fourth in a series of articles about how to reduce litigation costs while getting better results.  The following is adapted from Chapter II.C of Bensen & Myers on Litigation Management.

The single biggest impediment to an efficient, cost effective litigation is the poor management of information.  The efforts of even the most motivated attorney will be stymied by the lack of sufficient resources to carry out a task.  The most important resource an attorney can have is the right information at the right time.

The traditional approach of conveying information - the partner talking while an associate furiously takes notes - does not suffice.  For one reason, the information given the associate will invariably be insufficient to carry out the assigned task.  It certainly will not be sufficient to give the associate the "big picture" of the case necessary to correctly tailor work product to the overall case strategy.  The result is a lot of false starts, frustration and unnecessary revising.

The bigger the project, of course, the more mismanagement of information will negatively affect the team's work.  E.g.:

  1. Visits to the client's facility to collect documents by attorneys who do not have full command of the issues and pertinent requests will have to be repeated.
  2. Deposition preparation done without the right documents will result in poorly prepared witnesses.
  3. A deposition taken without good access to the necessary facts is unlikely to produce helpful testimony.
  4. Document review without a thorough understanding of the issues and requests will have to be done over piecemeal.
  5. And, of course, going to trial without having the necessary materials and information well organized will unnecessarily increase costs and potentially result in embarrassment.

Outside Counsel needs to make a concerted effort to organize case information at the outset of the action in a manner that will permit efficient updating and revising and easy access to the information by litigation team members.  Organizing the information at the outset of the action is important for the simple facts that (i) it is easier to organize information as it becomes available than to organize information that has accumulated over time and (ii) one never knows when the information will be needed, so being prepared from the outset is beneficial.

How to organize information is the more difficult question.  Putting it all in one "file" will make it easy to know where to look for needed information, but will make it difficult to find the needed information.  Creating many files will make it easier to find particular pieces of information within the right file, but more difficult to know which file to look in. 

The answer is to strike the right balance between the number and size of information repositories.  To do that, it will be helpful to identify the categories of information that attorneys actually use to manage a case.  Of course, two key and obvious categories are the facts and the law, or, more precisely, the factual development and legal analyses performed by the team.  However, there are other categories of information that, although not taking as much effort to develop and not playing as large a role in case management, can be critical to the efficient execution of particular projects. 

For instance, one category that is particularly pertinent to management is information concerning upcoming events, which is critical to identifying and prioritizing work.  Another category is contact information.  That may not sound like a major hurdle to case management, and certainly, it should not be, but the lack of access to a particular address can significantly delay the team's effort and be particularly frustrating when a deadline is looming. 

In a technical case, the definitions of technical terms are frequently an underappreciated category of information that, if made available to team members, can significantly increase efficiency.  Lastly, documents, like information, should be organized in files that are the right balance in terms of number and size.  Thus, another category of information is the structure of those files and where in those files specific categories of documents can be found.

Such information should be available to Inhouse Counsel as well the litigation team for several reasons. First, access to the information will be one of the primary means Inhouse Counsel has to verify that Outside Counsel is properly organizing, updating and distributing information in an effective and efficient manner.  Second, a clear window into the litigation team's understanding of the facts will make it easier for Inhouse Counsel to know whether additional client resources are needed respecting fact development.  Third, access to well organized case information will make it easier for Inhouse Counsel to fulfill its internal reporting responsibilities.

The tools needed to intuitively organize case information along with concrete methodologies and tools to address case evaluation, budgeting, the decision to bring suit, whether and when to settle, staffing issues, document collection, review and production, privilege review, trial preparation and other facets of the litigation process are provided in Bensen & Myers on Litigation Management.

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