Parties and lawyers who are content with the long and drawn out slog of civil litigation in federal court are about to get uncomfortable.  But those eager for innovation, efficiency and change are rejoicing, “It’s about time!”  On June 1, 2017, the Northern District of Illinois became the second federal court (District of Arizona was the first) to implement a Mandatory Initial Discovery Pilot (MIDP) project to test the use of “robust mandatory discovery as a means of reducing cost and delay in civil litigation.”  By all accounts, other federal district courts will soon follow, and if the intended impact occurs, it is our impression this program will be expanded.  Though the MIDP has been publicized and discussed in small measures in various legal circles and periodicals, it has not received close to the amount of “splash” it is entitled to, as it is poised to be a true game changer when it comes to incentivizing parties to assess litigation early and resolve cases quickly where appropriate. Simply put, the MIDP is a trap for the unwary and a boon for those prepared for and ready to embrace it.  More importantly, the MIDP screams out for three simple words we have been chanting religiously:  Early. Case. Assessment.

Background: The MIDP, through a Standing Order, requires parties to all but a few exempted civil cases (like patent cases and cases under the Private Securities Litigation Reform Act, for example) to exchange initial discovery responses and disclose both favorable and unfavorable information and documents relevant to the claims and defenses, regardless of whether the party intends to use the information in presenting its case.  Most notably, these disclosures must be made within 30 days of the responsive pleading to a complaint.  That means that within 51 days of a case being filed (21 days to respond, and 30 days after the responsive pleading), the mandatory disclosures are due.  If the favorable and unfavorable information comes in the form of electronically stored information (ESI), the production is due 40 days after the initial disclosures. So at the outer limit, within 91 days of service of a case, all parties will need to have gathered, reviewed and produced all documents relevant to the case in any way.

Extensions? Nope. If you think you will be able to extend your way out of these deadlines, think again.  To ensure that the dates hold firm, parties cannot extend the responsive pleading dates – defendants are now required to answer a complaint even if they are moving to dismiss (except in limited circumstances, like where the motion alleges lack of subject matter or personal jurisdiction). Only two exceptions to the mandatory disclosure dates apply:  (1) no need to comply if the parties jointly certify that no discovery will be needed, and (2) one 30 day extension of the mandatory disclosure date is available but only if both parties certify that they are in active settlement discussions and settlement is likely to occur within the 30 day period. Strict enforcement of the rules is in order according to the guidelines, and failure to comply will give rise to a host of sanctions under Federal Rule of Civil Procedure 37(b)(2).

So Why Is This a Game Changer? Under the old regime, document production rarely began in earnest until months (sometimes a year) after a case was in full swing – typically after motions to dismiss were resolved and the parties got around to serving written discovery and then negotiating extensions of time to respond to them. Actual production was also done in a piecemeal fashion, with multiple rounds of production after successive requests to produce were served at various points as cases crawled forward.  Under the old model, the production of information has been entirely reactive — driven by the specific document requests served by the other side.  Responses are tailored to produce only that information expressly requested. If, for example, there was a proverbial “smoking gun” that could doom a case but the opposing party, likely unaware of its existence, didn’t artfully draft its document requests to encompass it, it could be legitimately withheld. Not so anymore.

The MIDP has shifted the playing field so disclosure of information is now proactive. Rather than allowing the parties to wait to produce relevant documents based on whether they are requested, the mandate is clear — produce both favorable and unfavorable information from the get go. Let me say that again:  both favorable and unfavorable information. If the existence of relevant information is not reasonably known until after the initial deadline, disclosures must be supplemented within 30 days of learning of the new information. Again, failure to comply with these requirements is sanctionable, and the sanctions may include the inability to use certain documents or call certain witnesses.  Translation: if there are terrible documents you were hoping could be hidden until months or years into the case and would only have to be produced if directly asked for, um, not so much.

So What Can You Do to Prepare?  A lot! All parties must be prepared to gather, review and produce the information set forth in the Standing Order, Part B (information like witness names and other information pertinent to the case) and all documents in very short order after a case has been filed.  Plaintiffs certainly have the advantage for two reasons.  First, because they determine when a case will be filed and can wait to file (assuming no statute of limitations issues) until they are prepared to comply with the initial disclosure deadlines. Second, savvy Plaintiffs who have a choice of the venue in which to sue could opt to sue in the Northern District of Illinois or District of Arizona to take advantage of the MIDP requirements.  That means that for Defendants who are often unaware they are going to be sued, particularly those sued in but not located in one of the participating districts, it is imperative to have systems in place NOW so they can timely and effectively comply with the MIDP mandates even if a lawsuit is filed without prior notice.  All parties must be prepared to:

  1. Immediately preserve and collect all relevant documents and information from all custodians with relevant information. (Note that the initial disclosures require an identification of all relevant information, even information not in the party’s custody or control, though the obligation to produce does not extend to documents not in a party’s reasonable custody and control).
  2. Conduct a first-level review of all documents to review for relevance and privilege (the MIDP requires a privilege log unless the parties agree otherwise) and coordinate the production within the proscribed time limits.
  3. If there is ESI, the parties must meet and confer on production, search terms, etc., and they have 40 days from the initial disclosure date to produce ESI instead of at the time of the disclosure for hard copies and the other information.
  4. Assess the impact of the production on the strategy of the case going forward. 

This last step is the most crucial, and the one that will be the downfall for most litigants.  In fact, it is this step that will likely be overlooked or ignored by most, to their detriment.  Why? Well, if numbers 1 and 2 above are performed by those who are not responsible for or actively engaged in determining the strategy for the litigation — perhaps because of the use of outside e-discovery vendors or contract attorneys, it is quite likely that no one will be poised to effectively assess the impact of the documents that will soon be in the possession of the other side. This is a huge mistake, as cases often rise and fall on the documents (yes, facts matter), and strategies must be adjusted based on what the facts actually show. Failure to assess the nature and strength of the case at this early point is a missed opportunity that will likely prove to be costly.

Also, failure to navigate the new requirements may unwittingly open parties up for sanctions or provide pitfalls that can hinder a case and provide tactical advantages to the other side.

Change Is Good (Usually), and Early Case Assessments:  What do you do in the face of a game changer? Shift your own game to your advantage. At Valorem Law and ValoremNext, we have been singing the song of prevention.  The MIDP cries out for prevention.  The easiest and most cost efficient way to do that is to implement a mandatory early case assessment (ECA) program for all cases facing MIDP (actually, you should do it for all cases, but at the very least, all cases facing MIDP).  What does this mean? You need to design an early case assessment system that can be employed repeatedly and effectively, like clockwork.

Shameless plug: Valorem can help you design and implement an Early Case Assessment program and can conduct ECAs for a fixed fee to not only comply with the MIDP deadlines, but to also utilize the information gleaned to drive the strategy of the case, including early resolution.  Our ECA program includes:

  • Designing a system to enable rapid first level review of all collected documents for relevance and privilege;
  • The creation of a privilege log (required by MIDP);
  • In depth review and analysis of all documents to identify key documents, key issues, strengths and weaknesses based on a comprehensive review;
  • Interviews of 1-2 key witnesses;
  • A proposed strategic plan for the litigation based on the assessment, including recommendations of early resolution where warranted; and
  • The ECA can be augmented/supplemented after a review of the opposing party’s MIDP documents to determine if any modification to the strategy are in order.

Litigants best suited to immediately distill the nature of their documents to determine if there is exposure, and if so, to drive the appropriate strategy, will be the biggest winners.  In a sense, the MIDP is a gift to those who prefer not to spend hundreds of thousands of dollars in legal fees before learning that the case should be settled.  With the collection and production of all relevant documents so early, parties have every incentive (and ability) to analyze and assess the strengths and weaknesses of their cases and drive those that should be settled to early settlement while playing the long game for those whose facts warrant it.

Similarly, because the initial disclosure requirements are mutual, those best equipped to quickly review and analyze the documents being produced by the other side will be in a position to determine their own strategy based on what they are seeing. This may mean taking depositions in a different order based on what the documents show, or focusing on a different theory if the early disclosures illuminate it.  For Plaintiffs, it is a chance to see if their theory holds up early on.  Similarly, for Defendants who know a case is coming (even though it has not yet been filed), implementing an ECA program in advance will allow the avoidance of a lawsuit with the appropriate pre-litigation resolution.

This Will Just Drive Up Expenses. Nope Again. While parties may fear that complying with the MIDP will be more costly than before it will actually save money in the end. The cost spent reviewing and analyzing documents does not differ from it was under the old regime, the expenditure will just come earlier.  Also, a comprehensive review and assessment done right (and efficiently instead of in drips and drabs) and at the beginning will cause cost savings.  Most crucial though, the review and assessment will be done before hundreds of thousands of dollars are spent on potentially unwarranted legal fees — costs that can and should be avoided for cases that should be settled early.  For those looking to capitalize on the new rules and use them to their advantage, committing to spending the time and money up front to engage in early case assessment will be the true game changer. And for those who think that they can just ride out the MIDP pilot test out until it goes away, think again – the test will run for three years and our prediction is it will be expanded and extended. Time to change your game!


Nicole Nehama Auerbach is a Founding Partner of Valorem Law Group, LLP and ValoremNext, LLC. Valorem Law Group is a nationally known litigation boutique that started the conversation about Alternative Fee Arrangements when it formed in 2008. ValoremNext is its sister-company, focused on prevention through consulting with companies and law firms to drive savings, efficiencies and innovation.

The easiest time to solve a problem is when it’s small.

Mary Barra, CEO, General Motors


To be honest, I had never focused on this aspect of prevention, but it is an important one.  Solving a problem when it is small prevents the problem from becoming a big one. While not as significant as avoiding the problem altogether, preventing a small issue from becoming a big one runs a close second.

I wonder how many companies or law firms have a formal process for evaluating the range of small problems they confront to determine if any are likely to mushroom into something significant.  If you have such a process, please share it with us, as well as how you designed the process to be successful.


Lawdragon leading consultants

Every several years, Lawdragon identifieds the premier consultants and advisors lawyers “call upon for their niche expertise.”  These consultants and advisors include visionaries who are rethinking how legal services are delivered are are among those who shape and leading the legal services delivery industry.  ValoremNext is thrilled that our own Jeff Carr has been named one Lawdragon’s 100 Leading Consultants and Strategists.  Jeff has earned this distinction through his ground-breaking innovations as General Counsel of FMC Technologies and, since he retired and became a race-car driver, as a consultant and advisor to law departments that seek to be elite performers and law firms that wish to work with elite performing law departments.

Congratulations, Jeff.  The distinction is well-deserved.

As part of our new foray into consulting, Pat Lamb and I have had the chance to help guide several small and mid-sized law firms interested in moving towards alternative fee arrangements but unsure where to begin. Having practiced using alternative fee arrangements almost exclusively since we started Valorem Law nine years ago, we forget that there are thousands of lawyers who have never used any fee arrangement aside from the billable hour for their entire career. While they are genuinely interested in making a change, in most cases it is not because they inherently know of and understand the limitations of the billable model. More often than not, some external force — a new management regime or more likely, a client, is the driving force behind the interest in change.

    As a result, some repetitive patterns emerge. I will discuss three in this post. The first is that firms genuinely believe they are using alternative fees if they are  using blended hourly rates or discounts. As a result, they think they have anywhere from a moderate to substantial amount of experience in using AFAs. The first piece of difficult news we typically deliver  — they don’t. No arrangement based on the billable hour is an AFA. Fees based on hours are, well, hourly fees. The adjective used (discounted, blended, etc.) doesn’t change the animal.

 Second, the question of “why would we ever do this?” invariably crosses somebody’s lips within our first or second session. This is a rational question from people who have been consistently paid, win or lose, without taking any risk by putting any skin in the game.  That clients are demanding it, that their competition is perfecting it and that firms employing AFAs and learning to be more efficient are able to be more profitable than before is the answer. But, as expected, skeptics abound. Especially early on.

   Third, they want to know the first step. Truthfully though,  there are really two first steps that run parallel to one another.  One is committing to the cultural mind shift needed to make AFAs work. The second is to start small. In other words, while the firm undergoes the necessary steps to shift the mindset from one that operates under the billable hour model, we recommend that a small group works with us to go thru the process of shifting a subset of their matters to AFAs — maybe  plans for estates under $2 million or single plaintiff employment cases–under our guidance.  That way, those who see how to ease into the shift to a new fee arrangement can become the leaders and trainers for the second wave. And so on. This also allows us to identify any firm-specific issues that may not be readily apparent before implementing AFAs throughout the firm or even a department. 

    These are just three common issues that have come up in our short stint of consulting on AFAs.  We will identify more issues in future posts. As they say, the road to change starts with the first step. We applaud these firms for their willingness to start the journey and the wisdom to do so in a way that helps them repeating avoidable mistakes along the way. 

(This is a repost from my blog, In Search of Perfect Client Service.)

According to a survey of corporate counsel at large U.S. corporations reported by, nearly 70% of law departments expect their annual operating budget to be flat or decrease in 2017.

Let me say that again—nearly 70% of law departments expect that annual operating budget to be flat or decrease in 2017. And we know that, in the face of this challenge, law firms will respond by….wait for it….raising their hourly billing rates. Because that’s what firms do.  Every year. Of course, it does not take an advanced degree to see the incongruity between the clients’ needs and firms’ response.

To make this statistic even more sobering, consider this: the amount of work that must be done by law departments with static or shrinking budgets likely has increased, not decreased.  Why? Because the world is smaller, businesses expand their offerings and operating geography.  Because that’s what businesses do.  And when they do, the work for the law department increases.  So demand for legal services increases while the budget to purchase legal services does not not. This is not good for law firms, especially large ones.  Nor is it good for law departments.

Faced with this, 43% of law departments expect to decrease their overall use of outside counsel. This work will be redirected to law department attorneys.  And, to be sure, there will continue to be efforts to shift work from higher priced lawyers to less expensive ones. Law departments will employ legal operations professionals to help improve operating efficiency within the law department.

The broad range of tools to reduce costs so more work can be done for the same amount is laudable.  But it is not enough, because it it not sustainable.  Once an efficiency is obtained, more work will still require more resources.  After some point in time, the issue will not be efficiency, but the amount of work.

Because of this, leading General Counsel are focusing on prevention, how they can work with the parts of their enterprise that generate legal work to operate in a manner that requires less involvement of the law department or produces less work for the law department.  A simple example is that improved contracting can reduce the number of contract diputes that the law department must handle.  Prevention is the key for long-term sustainable success—instead of having to do more with less year in and year out, law departments would have to do less and therefore be able to invest the less they get more wisely, on issues that better serve the corporation’s interests.

How many law departments have a structured preventive law program?  For those that don’t, what are the reasons they don’t?  For those with a structured preventive law program, what metrics on effectiveness are tracked?

These are interesting questions, and I am not aware of any generally available data.  Jeff Carr, Nicole Auerbach and I are conducting a preventive law survey for inhouse counsel.  We encourage all in-house lawyers to participate.  The results will be shared publicly.

I’ve played many roles in my life and like all of us, who I am today and how I think about and approach many topics reflects those experiences and life lessons. You’ve already read about the implications of my race driver role in legal service delivery.  And yes, I still am a race driver. But perhaps one of the most significant roles I played was well before I became a lawyer.  I was a lifeguard.

I like to recall this particular role first and foremost because that’s how I met Marie, my lovely wife for 37 years. But upon reflection, there’s another reason why this role was so important and so instrumental.  For the three years I was a lifeguard, I went in the water to help someone only once.  Now, while diving into the water with a rescue float might conjure up imagery of Baywatch or The Guardian, in my case, that certainly wouldn’t have been warranted.  I was a good swimmer but I was a skinny, lanky kid.  More importantly, the heroic rescue, while applauded by those onshore, is actually the last resort.  Lifeguards are trained to NOT go in the water – unless there simply is no other option.  Even more significant is the realization that having to effectuate a rescue, any rescue, often is the result of bad judgment or inappropriate behavior of the swimmer.  As such, while I went in the water only once, I blue my whistle a lot, a whole lot.  A whistle is the lifeguard’s physical manifestation of prevention – it’s the tool used to stop someone from engaging in an inherently unsafe activity that could result in death or physical injury.  So, while the rescue might be exciting and might be heroic, it’s the stoic lifeguard, vigilantly watching those in and around the water with that that pain-in-the-butt bleat of the whistle that protects and serves.

To summarize, as counsel qua lifeguard,  using  once again  our PRT approach:

  • Principle: Lifeguard – We protect and save lives, but we believe that every accident can be prevented. Lawyer – We help you with legal issues and problems, but we believe that every legal problem can be prevented.
  • Rule: Lifeguard – Stop the injury or accident before it occurs. Go in the water only as a last resort.  Lawyer – counseling before an activity can prevent legal problems while achieving objectives.  After a crisis or problem, what we learn can prevent recurrences.
  • Tools: Lifeguard – line of sight, whistle, hook, line & buoy.  Lawyer — P3 discipline (Plan|Perform|Perfect), including the Hot Wash and Formal After Action Tools.

We created ValoremNext, in part, because we believe that prevention should be the next focus areas for law departments and the legal industry.  After all, the best legal problem is the one you never have.  We know it works because this vision and resulting  focus was a primary component in driving  industry leading legal team performance at FMC Technologies for over a decade.

That said, while we believe the concept is sound and scaleable for larger or smaller companies, experience tells us that there is scant data available on whether companies are truly focused on prevention, and if they are, how so.  So, we’ve created a short survey that we are asking people inside companies (not limited to just lawyers) to enlighten us. We know your time is valuable – it should not take more than 3-5 minutes to complete.  We’ll gather data and we’ll publish results in this blog to date

Heres the link:

Since more data is useful, we hope you’ll tell others to participate in this survey and hope that you’ll forward this blog and link  to your social media followers/LinkedIn groups or directly to those you know who are in-house at other companies.

Thanks for being part of our grand experiment. Stay tuned for the results.

P3 Stage 3: Perfect

I’m still not a lawyer, I’m still a race car driver. So let’s continue with the build out of our P3 theme (Plan|Perform|Perfect) by examining the last element: Perfect.

OK, the race is over, car and driver have returned safely. The immediate question is did I achieve the objective of the Plan? If that objective was to win, did I come in first or first in my class? If it was to improve my times or my consistency, did I do so? If it was to finally get the right “line” in turn 6, was I successful? If it was to test a new aero or suspension set up for the car, what happened?

Note that all of the above objectives are specific and measurable. We have data – both macro (finishing position, lap times) – and micro (acceleration, braking, speed, gearing, engine rpm, water temperature, oil pressure, etc for every second of the race). We have video shot from the car – – and perhaps from colleagues and competitors. We have tools to overlay the micro data with the video.

But before going to the micro data, we do an immediate review – a Hot Wash (see below) of the race in a discussion with the track support team and perhaps other racers. After that, well sit down and each of us talks though what happened, what we did, whether the Plan worked, changes to the Plan, unanticipated events and our reaction. We come to some initial conclusions about root causes and things that need to be emphasized and things that need to be changed.

After that, we begin the detailed analysis of the data to hone the recommendations into future actions. Do the checklists need to be changed? Does any equipment need to be replaced or modified? Does my driving technique and behavior need to be modified? We do all of this so that the next Plan will be better, safer, and more successful than the one we just executed.

To summarize, during the Perfect Stage I once again used our PRT approach:

  • Principle: We learn from our past – both to continue to use what works well and to change those things that we need to take a look at.
  • Rule: We review our performance during and after every project self-critically and neutrally. We do not assign blame but assume responsibility for our own performance.
  • Tools: We use the Hot Wash and Formal After Action

At ValoremNext, we use this same approach in the perfection stage of every project. And so can you. As with the other parts of P3, the Perfect stage is fully applicable to law departments. Here’s P3, Stage 3, R3.2 in a nutshell:

Review & Reflect – At the conclusion of each phase of a project and at the end of a project, the project team reflects on its execution. This is known as an After Action Assessment or A03. During the project, the tool used generally is a fast-track AO3 called a HotWash (listen to the Manager Tools podcast on this subject for more detail on the technique). The purpose is to quickly identify what went well (“W3”) and things the team needs to take a look at (“TALA”). The inquiry is not about solutions, it’s about identification for the project team leader to use as an input to modify the Plan or any processes used in the Plan. At the conclusion of a project, the review is done using a deeper dive AO3 tool. Here the project leader goes first talking about their own performance. All other team members use this self-critical process to get all possibilities on the table.

Revise – The team can then decide upon actions including process and behavior modification to ensure what went well keeps on going well and what needs to improve is actually improved. As in the case of the Plan phase, any actions must be specific, measurable, achievable, realistic and time-based (“SMART”).

  • First, the environment plays out exactly according to Plan, and the Plan operates as expected;
  • Second, something anticipated by the Plan happens and a known alternative Plan is executed to react to that situation;
  • Third, something unanticipated by the Plan happens and an alternative is developed realtime to react to that situation. Note this may encompass an unanticipated flaw in the Plan as well as an unanticipated change to the operating environment.

Re-Deploy – The modified Plan is performed and the cycle continues until the Project is completed.

The Perfection Stage is almost as important as the Plan because this is where the failures in the planning process come to light. With that introspection and transparency, the next plan will be better than the last one. And this cycle of continuous improvement will continue. This post is shorter than the previous post about the Plan because in reality, execution or performance is the least important part of our P3 approach. A good Plan makes performance easier

On the other hand, you could forget about the perfection stage and just move on to the next emergency. After all, who’s got time for this AO3 stuff anyway? Besides, that self-critical soul searching is difficult – especially for the inhabitants of LawLand. Have you ever noticed that only others seem to make errors? If only everyone just did their jobs . . . . Well guess what, “everyone” includes each and every one of us.

You can implement what I’ve laid out above immediately. Try the Hot Wash process at the end of your team meetings. Try this perfect discipline and let me know how it works for you. Unlike my challenge to you in the previous 2 posts, I know this works even in LawLand and I know you’ll see the promise of and value in the P3 discipline of Plan|Perform|Perfect.

P3 Stage Two: Perform

I started the inaugural entry in this blog with the statement I’m not a lawyer, I’m a race car driver. Just after posting that entry, I had a race weekend and I wrote about the first facet of the P3 theme I introduced to you (Plan|Perform|Perfect).

Moving, quite literally in the case of racing, to the second facet – Perform – It’s race day! The track support team and I have gone through our checklists to ensure the car is prepared. Part of my personal checklist is the ritualistic order of putting on the fireproof racing suit, shoes, and balaclava, removing the steering wheel to get in the car, lowering into the tight cockpit, putting on the arm restraint, helmet, 6 point harness and gloves. I flip the battery and fuel switches, listen for the fuel pump, and press the starter. Ritual helps execution – but it’s no replacement for an actual checklist. So, my team double checks my execution.

I drive through the paddock to the grid to wait for the pace lap. I’m calm because I’ve got a plan. I know who is doing what and when. I leave the grid with the other cars in a tight twocar wide column, warming the tires as we run behind the pace car. As we finish the first lap, the pace car peels into the pit road and the columns stay bunched tightly together, transmissions in first gear, ready to accelerate when the starter throws the green flag. Drivers see the green and it’s off to turn one! Without the Plan, it would be utter chaos – all those cars trying to be in exactly the same place at exactly the same time. But with the Plan, I know the drivers in front, beside and behind me. I know their cars’ capabilities and their normal start behavior pattern. I know what to do to hold my position.

The Plan has turned many of the unknowns into knowns. The Plan also considers various things that could happen. For example, I know where the safest run off places are at each turn – how to mitigate against an incident or a mechanical failure. Taking these predictable possibilities into account in the Plan converts the unknown into known unknowns. While I don’t know if it will occur, I know it could and what I’ll do in that situation. As such, the Plan significantly reduces the unknown unknowns.

When something does happen, I follow the Plan. If outside the Plan, I react to the new environment and then immediately modify the Plan to that new situation. I then follow the revised Plan. This cycle continues throughout the race.

The lessons learned as a race car driver are all applicable to running a law department. Here’s P3, Stage 2, R3 in a nutshell:

Relax – The project team has a plan – follow it. All team members know the objective of the project and who is going to do what when.

Respond – During the execution phase there are three and only three possible scenarios:

  • First, the environment plays out exactly according to Plan, and the Plan operates as expected;
  • Second, something anticipated by the Plan happens and a known alternative Plan is executed to react to that situation;
  • Third, something unanticipated by the Plan happens and an alternative is developed realtime to react to that situation. Note this may encompass an unanticipated flaw in the Plan as well as an unanticipated change to the operating environment.

Re-Deploy – The modified Plan is performed and the cycle continues until the Project is completed.

This post is shorter than the previous post about the Plan because in reality, execution or performance is the least important part of our P3 approach. A good Plan makes performance easier, more predictable and more able to adapt to a change in the environment.

On the other hand, you could fail to Plan, forget the Plan or disregard the Plan. In a race car, while that might be “exciting” it’s also a recipe for disaster. As I said before, try it in LawLand and let me know how that works out for you.

Generally speaking, litigators are fire fighters.  Fire fighters are told there is a fire; they are told the jurisdiction of the fire; they gather their standard fire-fighting tools (hose, ladder, fire truck) and they react.  All very important if it’s your house on fire.  The same is true for litigators.  Litigators are told by the client a lawsuit has been filed; they are told the jurisdiction of the lawsuit; they grab their standard tools (a motion to dismiss, motion to transfer venue) and they react.  Again, great if the client is on the receiving end of the lawsuit.

But wouldn’t it be better if the fire, and the lawsuit, never happened in the first place? Of course.  Think of the time, effort and money that would have had to have been devoted to putting out the proverbial blaze that would be saved.  The inescapable truth is, the best lawsuit is the one you never have.

Some find it counter-intuitive to push prevention as a litigator. Taken to its logical extreme, a totally effective prevention program would put litigators out of business.  Why focus so relentlessly on prevention? Perhaps it’s that we are not traditional litigators.  While we are happy to play reactionary, we find even more value in helping our clients save money and effort by identifying preventable risks and avoiding them.

As litigators, we are in a unique position to play a crucial role in preventive law.  In litigating a breach of contract matter, we learn which clauses held up and which were deemed too ambiguous to pass muster. We could do nothing at the conclusion of the case, or we can ensure that our client revises all of its form agreements to prevent the same issue of ambiguity from arising once again.  Or perhaps we are handling a false advertising matter and we learn that a particular phrase or business practice put our client at risk. Again, a wonderful opportunity to prevent the next lawsuit. Same thing applies to a dispute arising out of a sales transaction gone bad. The more routine or repeatable the business practice, the more opportunity for repetition of the same mistake. The antidote – prevention.

Will effective prevention put litigators out of business? In theory yes, but in reality, it’s doubtful.  Prevention can reduce but not eliminate claims and lawsuits.  It can mitigate the effects of litigation and it can help insulate a company from liability.  So a zero-litigation world is a goal, albeit one that is unlikely to be reached. That doesn’t mean, however, that we shouldn’t do all that we can to identify and change the underlying behaviors that give rise to claims and litigation in the first place.  That focus makes our customers better companies and better citizens.   Every day we get closer to destination zero though, is a good day.

I started the inaugural entry in this blog with the statement I’m not a lawyer, I’m a race car driver.  Just after posting that entry, I had a race weekend.  That backdrop helps illustrate the Plan-Perform-Perfect theme I introduced to you. We call this trilogy P3.

So, let’s start with the first P in P3 – Plan.  Before I left for the race weekend, I used the 3 steps in the Plan portion of P3: Pre-Activity; Objective; and Optimization (known as PO2—what can I say, I’m an acronym kind of guy).  Pre-activity comes from the After Action Assessment discipline and involves reviewing the lessons from similar prior activity to ensure the lessons are implemented.  I reviewed my track notes, video of my last time at this track and video from other drivers.  With this as a basis, I moved to Objective setting and I decided my objectives were, first, faster lap times than my previous run this particular track; and second, more consistent lap times.  The first objective is exciting – heck it’s downright exhilarating because it’s always better to go faster.  But the second objective is more important because that’s what wins races.  Any competent driver can do a hot lap – but a great driver puts many consistent good laps together for a lower aggregate race time.  Just as important, my track support team was making sure the car was tuned and ready: bolts tightened and torqued; fluids checked and re-checked; fire apparatus charged and armed; suspension settings reviewed and adjusted; tire pressures confirmed – checklist complete.

Now I could move to the Optimization phase and create the specific plan for this race.  The team decided roles and responsibilities in the pits and on the track. I identified my shift points, breaking points, turn in points, apex and track out points.  I also created my plan for the most dangerous phase of any race – the start.  It’s dangerous because you find yourself in a close two-by-two formation with similar cars in order of qualifying times.  You’re rolling at relatively low speed waiting for the starter to throw the green flag and then it’s a drag race to the first corner where all those cars are trying to be in precisely the same spot at the same time.  Chaos.

I could just hop in the car and drive.  Maybe the car would hold together, or maybe not.  Maybe I’d hook up my 5-point safety harness properly or maybe I’d forget the arm restraints.  Maybe I’d remember that turn 2 is a tight declining apex turn I have to downshift from 4th to 1st, or maybe I’d remember that after going off into the hay bales.  Maybe I’d run like fire and win, or maybe I’d make an avoidable error and crash.  Exciting drivers just drive and might finish.  Winning racers plan, leverage their teams and finish because nothing was left to chance.

To summarize, I prepared for the race using our PRT approach:

  • Principle: We believe that planning is the most critical factor determining success in any endeavor.
  • Rule: We use P3 for every project and we won’t start a project without completing P3 Stage 1: A Plan.
  • Tools: We use the P3-Stage 1 PO2 discipline to create a plan.

Here’s P3, Stage 1, AO2 briefly:

Pre-Activity:       For some time I’ve embraced the principle that “the only thing I hate more than answering the same question twice, is paying to do so.” Before starting a project, it is critical to canvass what you already know and have learned (but may not remember), and anything readily accessible from your network of resources.   You should never repeat the mistakes of the past, and always leverage what went well before.  Stand on the shoulders of others, and you don’t have to always be a giant.  Don’t have a repository of lessons learned? Well, stay tuned for the third post in this series and others on the A3 topic.

Objective:          Before starting, you need to clearly identify your objective.  We call this starting with “Why” (we highly recommend reading Simon Sinek’s “Start with Why”).  In our world, the best objectives follow a well-known discipline from the HR world: SMART:

  • Specific – “win” isn’t very specific and therefore it’s not too useful. In racing, my objective was improvement and consistency – that could well result in a podium finish but that wasn’t my objective.  In legal matters, if you don’t know what your objective is, if you haven’t agreed with your customer and your entire team, then the chance of success as all have agreed to define it, is happenstance .  But most important, if you can’t define your objective to you’re a service provider ethically bound to provide “zealous representation”, you might as well get your wallet out and just hand it to them.
  • Measurable – As management guru Deming said, if you can’t measure it, you can’t manage it. Things are always measurable – whether or not they are quantifiable.  Improvement, exceeding a benchmark, getting more support, having a contract meeting certain risk and performance criteria, closing a deal with certain defined synergies or results are all examples of a measurable success criteria.
  • Achievable – Your objective must be possible. If a court in the jurisdiction can’t order an injunction in this type of dispute, don’t think about that kind of relief. If monetary damages aren’t enough for your customer, then re-calibrate their expectations.  For example, you can’t eliminate all disputes and litigation, but you can create an environment based on a zero defect mentality.
  • Realistic – Something might be achievable yet not particularly useful or realistic. I might be able to run a lap 5 second faster, but the stress put on the car and driver might make such a pace unsustainable.  And if I don’t finish, I can’t “win.”  It’s not realistic to “win” a case at far more expense than the amount in controversy – unless, of course, it’s a matter of principle.  But in that case, get ready to pay a lot in interest.
  • Time-based – projects must end at some point and therefore, establishing stage gates and end points is crucial. If you don’t, get that wallet out once again.

We can argue, as the podcast Manager Tools does, that achievable and realistic are both redundant and unnecessary, but at least when starting out with this approach, it’s useful to make sure that your clear objective really fulfills these criteria.  An objective that cannot be achieved creates an impossible success criteria.  An objective attainable at an unrealistic cost or one that creates unsustainable conditions for the future, is a waste of time and resources.

Optimization: With objectives clear and previous lessons known, you can now map out your plan.  We use the W3 project management discipline in this stage: who, does what, when.

  • Who – A project team can have one member or many. It’s critically important to identify the roles and responsibilities of each member of the team.  This involves identification of necessary expertise and determining availability.  When you think of any project as a series of linked processes, then you have a chain of supplier, operator and customer, culminating in the end customer who receives the ultimate output of the project and determines whether the agreed upon objective has been met.  Along this horizontal
  • What – The chain mentioned above is the “what”. Which team member will complete some process to produce an output that becomes the input for the next link in the chain.  An example in the e-discovery contest might be to determine which documents have been communicated to or from an attorney.  This doesn’t take an attorney to make that call, but it may take an attorney to determine whether the communication was privileged.
  • When – The order in which the processes are done is the “when.” Since the chain cannot be completed until necessary previous steps provide the output to the next process, the order is important.  In the context above, why have an attorney look at documents that “might” be privileged until that call actually must be made?  Let the operators do their work in the chain before redundant or potentially wasteful activity occurs.  Now, there can be parallel work flow chains, but they must converge since the output of each of those work flows is a necessary input for a later process.

So do the hard work up front and map out your work flows. Identify who will do what when and then you can hold the team members accountable.  Or you can just wing it, start without planning, and see what happens.  Let me know how that works out for you.


Up next:  P3 Stage 2: Perform and P3 Stage 3: Perfect