Whenever I have written about project management, process management or Lean and Six Sigma, I received considerable criticism from a number of people who feel that such concepts should not be applied to knowledge workers such as lawyers. At the risk of drumming up more consternation, I am putting my toe back in this water because I recently saw an article that helps illustrate the value these tools have in the practice of law.
Before getting to that article, however, I need to talk about the four buckets into which legal work fits. The four-buckets rule—developed by Jeffrey Carr, general counsel of FMC Technologies—is that that legal work fits into one of four buckets: process, content, advocacy and counseling. The Carr corollary is that general counsel are willing to pay generously for advocacy and counseling, but believe process and content should be free, or at least much less expensive, while law firms make the bulk of their revenue from the process and content buckets. This divergence may well explain why so many inside lawyers are so unhappy with their outside firms.
If nothing else, there should be little debate that concepts like project management, process management, Lean and Six Sigma are well-suited for the process bucket, which would include things like document production. The need for applying basic quality control concepts to an endeavor like document production seems self-evident, but a recent article in the Wall Street Journal (sub. req.) discussed a lawsuit filed against McDermott Will & Emery by a former client claiming contract lawyers supervised by McDermott attorneys produced about 3,900 privileged or irrelevant documents (out of a document population of approximately 250,000) to the U.S. government, which in turn produced the documents to a plaintiff suing McDermott’s former client.
McDermott’s defense appears to point the finger at the contract lawyers, but that argument really misses the point. If McDermott had a structured work process or quality control system for document review, it would have been virtually impossible for them to generate 3,900 errors. Let’s put McDermott aside and focus on what law firms should provide to capably handle or supervise document reviews. First, a law firm should have a documented and rigorously controlled work process (preferably one that is independently audited and certified, either by an agency like Underwriters Laboratories or a peer review process similar to what’s done in public accounting). Such a process would identify each and every step necessary to review and produce documents, similar to the processes physicians who follow World Health Organization guidelines use for surgery or pilots who follow Federal Aviation Administration guidelines use to fly planes.
Second, a law firm should also have a documented and rigorously applied quality control system (again, preferably one that is independently audited and certified, similar to an ISO 9001 certification).
Such a system would measure the accuracy of the work product both while it is being prepared and when it is complete, similar to what manufacturers who follow ISO standards use to manufacture products, or software engineers who follow Capability Maturity Model Integration guidelines use to write computer programs.
Third, a law firm should train lawyers in the specific competencies necessary for document review, i.e., work process management, quality control, e-discovery principles, document review techniques and privilege. Such competencies should be learned using documented training programs and demonstrated through testing and practicum. In other words, being a lawyer is not enough.
Specialization and the requisite training in the specialization—i.e., document review—matters, so lawyers should have specific training in document review (for example, being a commercial pilot alone is not enough because pilots are qualified by aircraft, e.g., a pilot qualified to fly a MD80 is not necessarily qualified to fly a Boeing 747). Generally, law firms do not make these types of training investments in their own lawyers and rarely, if ever, in contract lawyers who are temporary workers and thus won’t work for a law firm long enough to provide a reasonable return on an investment in training them.
Fourth, lawyers should always receive matter-specific training for whatever matter they are working on and be required to demonstrate their understanding of a matter through testing (ABA Model Rule 1.1 requires “… thoroughness and preparation reasonably necessary for the representation,” which cannot be fully achieved without matter-specific training and verification through testing). Few, if any, firms provide matter-specific training and testing, other than preparing a case summary and coding manual and meeting with the contract lawyers to discuss them, which is typical in the profession, but could be insufficient to provide the sort of certification that Federal Rule of Evidence 502(b) requires.
The challenge facing law firms is whether to invest in the control systems, training and related business practices to create the state-of-the-art quality control that would be expected of elite law firms, or, alternatively, partnering with a professional review and content control firm to achieve the expected quality from this process piece of a lawsuit.
The application of the quality control and process tools I’ve mentioned is not pie-in-the-sky stuff. Ray Bayley, the CEO of Novus Law, has demonstrated the use of these processes in the document review and content management piece of litigation. The metrics created in real time are, to say the least, impressive. The entire design of the document review process has been completely re-engineered at Novus, not surprising because the founders are not lawyers, but instead engineering and outsourcing experts. Highly engineered document reviews and productions are absolutely possible. The better news is that they can be done at a fraction of the cost of most law firm-created alternatives. But the best news is that quality is superior.
The example of document production is just one illustration of the value tools like Six Sigma and Lean bring to the process component of legal practice. There are others. Having made the point, let me be clear on a point I am not making. I am not suggesting that these tightly engineered solutions can or should displace the analytical piece of our work, which falls primarily in the advocacy and counseling buckets. The concepts of thinking and creativity are not at war with engineered solutions. (Full disclosure here: I was so impressed with Novus’ approach that Valorem and Novus are now actively seeking to work together on appropriate matters.)
Patrick Lamb is a founding member of Valorem Law Group, a litigation firm representing business interests. Valorem helps clients solve their business disputes and coping with pressures to reduce legal spend using nontraditional approaches, including use of nonhourly fee structures, coordination with LPOs or contract lawyers, joint-venturing with other firms and implementation of project management tools to handle lawsuits or portfolios of litigation.
Pat is the author of the the recently published book Alternative Fee Arrangements: Value Fees and the Changing Legal Market. He also blogs at In Search Of Perfect Client Service.