Articles and Speeches
Maximizing Legal Project Management with Outside Counsel
Reprinted with permission from the ACC North Florida Chapter Newsletter ‘Focus’
In the past few years, Legal Project Management (“LPM”) has seen a growing following, but it remains somewhat of a mystery to many. LPM has been defined as “the application of the concepts of project management to the control and management of legal cases or matters.” Steven B. Levy, Legal Project Management: Control Costs, Meet Schedules, Manage Risks, and Maintain Sanity, DayPack Books (2009) ISBN 1-4499-2864.
The new economic reality is that law firms and legal departments are being called upon to do more with less. That means we all have to be more efficient. Thus, outside counsel and their clients have taken many different steps to employ project management techniques (primarily from the manufacturing realm) in managing legal projects, including: (1) e-discovery, (2) loan deals, (3) repetitive (or massive) litigation, and (4) special projects.
The simple truth: If a legal project is going to be completed within budget, it has to be managed appropriately. So, the question is how will you structure that management? In the end, there is no magic recipe. The three key components are: (1) identifying the goal, (2) implementing a solution, and (3) adapting the solution for continual improvement. How that can be done is best designed between client and attorney through an open dialogue.
Where to Begin?
If your outside counsel are not already talking to you about their LPM projects or skills and you have not already implemented techniques in your legal department, the very first step is to ask.
Starting the conversation about LPM means talking about goals: What do you hope to achieve? As the adage says, if you do not have a destination in mind, any road will take you there. Initial goals can be as simple as: (1) implementing periodic, standardized reporting on costs compared to budget; (2) developing prototype discovery responses; and (3) developing communication protocols to ensure the proper people stay informed as the project commences.
In identifying the goals, you should consider: How will you measure value in achieving the goal? Does the value need to be quantifiable or will anecdotal evidence suffice? Will the results of any efficiencies be reported internally or externally? If so, how will you want to measure that efficiency from the outset? It is too late to put down those yardsticks once the project is started. And, if you have difficulty figuring out how you will measure success against the goal, you may also have difficulty achieving the goal because you will not have a clear path from initiation to conclusion.
Once the goal is established and the measurement for success is decided, then client and attorney can discuss openly how to achieve those goals: the implementation phase. Implementing your LPM strategy may mean many different things, as the steps can vary as much as the initial goal. Step 2, nevertheless, starts by simply asking: What tools are available to us to help us achieve the goal?
Are you employing software as a primary method for implementation? Does it do what you need it to do for a successful project? Can you customize it? Do you need something as simple as checklists or a basic database? Or do you need more powerful tools?
Some solutions for LPM are indeed very basic, but they are profoundly valuable. Establishing a checklist for counsel listing whether they have identified all of the proper witnesses, searched for the appropriate documents, or considered all available affirmative defenses can be an invaluable but very simple LPM tool. (For more on the effectiveness of checklists in other industries, see Atul Gawande, The ChecklistManifesto: How to Get Things Right (Metropolitan Books 2010).)
If recent events have shown that your company or your client is about to be involved in a number of similar suits, then one goal obviously will be to maintain consistency with the answers, briefing, legal offense and defense. (Also, if you will be having multiple counsel across jurisdictions, another goal would be how best to keep them all reading out of the same playbook.) Implementing LPM begins with talking to your lead counsel and assessing what technology tools can be used to allow attorneys to communicate confidentially and to maintain the document room where ideas, briefs, and research can be shared. Ask them to help you brainstorm about how to keep everyone rowing in the same direction. Moreover, you will want to coordinate e-discovery, and you must be consistent in responding to production requests, answering interrogatories, and responding to requests for admission. Preparing readily available templates accessible to the team will shorten response times and reduce costs. One person should be responsible for: (1) tracking and ensuring compliance with the approved responses, and (2) monitoring the costs from jurisdiction-to-jurisdiction so you can budget accordingly. (Paralegals make excellent project managers for complex litigation.) Work with counsel to establish a list of issues and then establish which tool will do the job. (Lean4Legal PM®, http://www.ermlegalsolutions.com/ is one available solution.)
Two key components of implementation are: (1) open and direct communication (the key words for outside counsel here, are “no surprises”), and (2) ongoing measurement against the success metrics identified at the beginning. Most successful LPM techniques and practices incorporate checkpoints to measure progress toward goal achievement. It may be just measuring against budget, but it may also mean measuring consistency and error rate. So, for example, if a budget and timeline were instituted for the motion to dismiss phase, but those are exceeded by an agreed amount, e.g., more than 10%, does everyone feel safe in discussing what happened? How the parties resolve to reconcile the differences will depend in large part on their ability to identify and define the reasons for the overages. If neither party feels safe in having that crucial conversation regarding how to handle the problem, then it is unlikely to get resolved in a manner that fosters the trusting relationship for which both client and counsel strive.
What Went Right?
The “P” in LPM could as easily be “process” as it is “project.” That is because, once you have developed that process, it is absolutely critical that the parties invest the time to review how the process progressed so it can be effectively employed for the next project. Where did you find hiccups? Where were there problems? If they were discussed along the way, was the resolution that you reached then the same resolution you would have decided upon now in hindsight? If problems or issues were not discussed along the way, why not? Who had ownership of the issue to bring it to the forefront?
Communication about the highs and the lows of the process undertaken is necessary to develop a better understanding of how to be successful in the next venture. No one can measure true success without talking about it.
Joining the LPM movement is not about learning a secret handshake or adopting a strict set of rules implemented by others. It is about devising predictable pathways to achieve your goals using a combination of knowledge management, adherence to process, and clear communication.
Erika (firstname.lastname@example.org) is a member of the Florida and Georgia bars; she works out of Nelson Mullins’ Atlanta and Jacksonville offices to help clients protect their business interests in complex commercial litigation cases. Frank (email@example.com) is a member of the Florida and New York bars; he is a member of Nelson Mullins’ business litigation team.