Best Practices for Litigation

By Jane Gennarelli

Introduction

Corporate law departments are keeping a critical eye on the costs to litigate, and law firms around the country are taking steps to become more competitive. As a first step, many firms review the technology they use and develop a plan to bring in technology that will keep them on the leading edge. In fact, individual firms have spent hundreds of thousands, and in some cases millions of dollars over the past decade to acquire technology and keep up-to-date on current trends.

More and more firms recognize, however, that this first step alone is not enough. If the firm's technology is not incorporated smoothly into processes, firm culture, and work habits, it does not yield efficiency. In fact, in some cases it can result in more work, no difference in the quality of services, and no improvement in the bottom line. Giving state-of-the-art technology to attorneys, alone, is simply not enough. It needs to become an integral part of a firm's litigation practice.

What are Best Practices?

A Best Practices program for litigation is a set of standards and procedures for handling all of the tasks associated with litigation-preparation activities. A Best Practices program will include detailed procedures and logs for each task, standard technology to be used, a plan for training existing staff in implementing the program, an orientation program for new staff, and a plan for ongoing updates to and maintenance of the program.

This is more than a technology issue! Best Practices will do more than provide instruction for when technology is appropriate and how to use it. Best Practices will provide a strategy for handling every step of the overwhelming process of handling discovery materials, incorporating the right technology at the right time. It is a program that will lend efficiency and consistency to litigation activities.

Solid Best Practices will include detailed procedures for all litigation activities, not just those that directly involve the use of technology. It will include detailed procedures and logs for collecting documents from your client, screening documents, redacting documents, producing documents, numbering documents, designing a database, budgeting and scheduling, coding, scanning, and so on. The procedures can be compiled in the form of a paper manual, or alternatively, in the form of a database that is accessible by all litigators and legal assistants in a firm.

How will Best Practices Benefit the Firm?

A solid Best Practices program that is effectively implemented can benefit your firm and your clients in a number of ways:

Your litigation department will be more efficient. Best Practices will give you a framework that will allow you to get up and running quickly on a case. Everyone working on a case will know what they need to do, how to do it, how to schedule it, and how to budget it. Here are some of the benefits you will see regarding a more efficient operation:

Tasks will be done right the first time
Tasks will be done by appropriate staff
Tasks are more likely to be completed on time
Attorneys will have what they need, when they need it
On each case, less time will be spent giving instructions on approach
No more lost billings because of work that took too long, needs to be redone, or was done at a billing rate that can't be justified.
Each task will be done in a way that facilitates future tasks.

You will have more flexibility with staff assignments. With good Best Practices, you can more easily staff cases for the inevitable peaks and valleys of work. Because everyone is trained in a standard approach, it is possible to share legal assistants and support staff from case to case when workload demands warrant it. And, solid Best Practices will incorporate mechanisms for documenting case activity, so critical knowledge and background information won't be lost if a valuable team member leaves the firm.

You will have a powerful marketing tool. Most firms promote their use of technology to existing and potential clients. Few firms are in the position to promote a documented approach for reducing costs and increasing the quality of support staff work that is critical to a case. A well-developed Best Practices program is tangible. It is a process that is documented that can be shown to existing and potential clients. And it is a process that will impress clients.

You will have a powerful recruiting tool: What are associates, legal assistants, and litigation support staff looking for when they are selecting a firm to join? They look at dollars, they look at the type of work they will be doing, and, they look at opportunities for advancement and to learn. They want assurances that they will be doing work that will be challenging, and not work that should be done at a level or two below their own. They want assurances that they will have leading edge technology tools available for their use (how often do candidates ask whether they will have a desktop computer, or even a laptop?). And, they look for opportunities to succeed. No one wants to take a job where they think they will fail. A Best Practices program is a terrific recruiting tool. It displays the firm's professionalism, its commitment to giving its employees the tools they need to succeed at their jobs, and its commitment to giving its employees work that will be challenging and rewarding.

How do I Develop and Implement a Best Practices Program in my Firm?

There are several steps involved in developing an effective best practices program, each of which is described below. Before looking at the steps, however, keep in mind that this project will require time and dedication. If you approach it casually, it is likely that you won't complete it or that it will not really meet the needs of the firm. Once your firm has decided that a best practices program is to be implemented, seriously consider available resources. Most likely, your staff will have the skills to develop this program. But, you need to determine whether your staff has the time to undertake this project. If not, it probably makes sense to hire a consultant who can develop the program for you.

Get Commitment: For a Best Practices program to be successful, you need to have the buy-in and support of influential people in the litigation department. You need someone with authority to say "this is how we will do things". Senior, managing partners should be your target. Approach them with a description of the Best Practices program you would like to implement, a list of the benefits it would bring to the firm, and a plan for getting it done.

Collect Information: To develop a Best Practices program that really works for your firm, you need to have a good handle about what's happening in the firm now. Your Best Practices need to be a good fit with the firm's culture and the work habits and preferences of the litigators and legal assistant staff. You can start by creating some surveys for the litigation department members to fill out. These surveys should be aimed at finding out what people are doing now. This type of information can be easily gleaned from a survey:

The technology tools they use the most and what they use them for
The tasks that take up most of their time
The methods they use most frequently to communicate with coworkers, clients, vendors, etc. (for example, e-mail, phone, face-to-face meetings, fax).
Information on their cases: for example, the types of cases they usually work on, the typical number of active cases they handle, the average number of pages produced, the average number of depositions taken, and so on.
The types of databases with which they have worked in the past (databases of documents, databases of transcripts, databases of pleadings, and so on)
The typical composition of a litigation team (the number of partners, associates and legal assistants).

Here are a few suggestions regarding surveys:

I suggest separate surveys for partners, associates, and legal assistants. They are all involved in different tasks, use different tools, and have different interests.
Keep the surveys short. If the survey is more than two or three pages, people will put it aside until they have more time, and it is likely they won't get back to it.
Create the questions so they are easy to answer. Yes/no questions work well, and so do multiple choice questions. For example, when asking about what tasks they spend most of their time on, list tasks that they can check off or circle.
Have the survey distributed by someone with influence. If you have the buy-in of a senior partner, ask that partner if the survey can be distributed under his or her name. You are more likely to get responses if people are asked by someone with influence.
If you are able to easily create an online survey do so, but don't let that become a project in itself.

After the surveys are completed and you've got preliminary information on what people are doing, schedule interviews to collect more information. I recommend that you interview a representative sample of partners, associates and paralegals. Each interview should not take more than an hour. In the interviews, get more details on how people work. Ask them specific questions about the tasks they do and how they do them. Collect as much "procedural" information as you can. The interviews will serve a few purposes:

They will give you information on work habits and preferences
They will give you procedures that are already being used that may be a starting point for firm-wide procedures
They will help get people on board with the program. People will embrace a program that they believe they helped to develop.

Create an Outline for the Best Practices: After the information collection task is completed, you will have a good idea of the tasks that people do, and therefore, the tasks for which you need procedures. Create an outline that will serve as your starting point for drafting procedures. The outline should be detailed with general tasks serving as major headings, and components of those tasks as subheadings. For example, the part of your outline for collecting documents from your client might look like this:

Collecting documents from your client
Developing criteria to determine responsiveness
Planning the review process
Reviewing the files and marking the documents to be collected
Getting the documents reproduced
Refiling the originals
Maintaining documentation

The outline alone for thorough Best Practices will be several pages in length. It should be very detailed, very complete, and very self-evident. That is, it should be clear from the outline topics what procedures will be found in each section.

Draft Procedures: This will be the most time-intensive part of the process. You will draft procedures for every task and sub-task on the outline. The procedures must be detailed, clear, and easy to follow. For some tasks, you may need multiple sets of procedures. For example, you may have procedures for electronically numbering pages in cases where you will be scanning. If your procedures dictate that you will not be scanning documents for images in all cases, then you will also need procedures for manually numbering the document collection.

Review and Approval: Find partners, associates and legal assistants that want to participate in the review and approval process. Once you have drafted the procedures they should be reviewed and approved by a committee established solely for this purpose. This will serve two purposes:

First, it will make your procedures better because you will have input from people who will actually be using them.
Second, it furthers "buy-in" for the program -- people that participate in the process will be more accepting of the final product.

After the committee has reviewed the draft procedures, meet with everyone to discuss modifications and to put the procedures in final form.

Develop a Training Program: Both existing staff and new staff that the firm hires need to be trained in the Best Practices. It is probably best to coordinate this activity with the existing trainers at your firm. Together with them, you can develop a training program, and a plan and schedule for training. Work with the human resources group in your firm to incorporate the Best Practices into new hire orientation for incoming legal assistants and associates.

Ongoing Maintenance of the Program: Over time, the procedures will need to be updated and added to as new technology is used at the firm or as procedures evolve as a result of practical application. You need to identify an individual responsible for updating the procedures and a process for submitting suggestions and having them approved and incorporated into the program.

In Conclusion

A Best Practices program can be of tremendous value to your firm's litigation practice. It can help you to work more efficiently and serve as a powerful marketing tool for getting new clients, keeping existing ones, and recruiting talented individuals. To be successful, it needs to be well-planned, developed in detail, and carefully executed. Call Jane Gennarelli if you have questions or to discuss ways in which she can assist your firm in developing and implementing a Best Practices program. Note that Jane has developed boilerplate Best Practices that she uses as a starting point for firm-specific Best Practices. This eliminates the need to start from scratch with each firm, and therefore minimizes a firm's investment of time and dollars.