McElhaney on Litigation
Put Out the Fire
Keep your case files up to date if you don’t want to get burned
Posted Dec 1, 2009 8:59 PM CST
By Jim McElhaney
Angus was talking to a group of lawyers about trial preparation and case management.
“There are some powerful traditions in the practice of law,” he said. “Like talking to clients and laboriously taking longhand notes on 14-inch yellow legal pads. Or the way most of us treat new cases when they come into the office.
“There is an initial flurry of activity. We do a conflicts check—formal or informal. We open files, set up billing routines, put new names and telephone numbers in our Rolodex files. Then we take the first procedural steps necessary to keep us out of trouble. We file a summons and complaint if we represent the plaintiff, or make our first dilatory move if we’re for the defense.
“Then our secretary puts the file in the cabinet—or we leave it on top of the desk or a bookcase with other files just like it—and we let it compost for six months or a year.”
Everybody started laughing—because it was so painfully true. Angus went on.
“And we do nothing with the case because we are busy putting out fires that have started in other files—probably from spontaneous combustion—that were composting even longer.”
Then Angus stopped and looked at everybody be-fore going on. “Let me ask you a serious question,” he said. “How many of you—let me see your hands—send quarterly reports to all of your clients about their cases?”
“OK,” said Angus, “how many of you regularly send quarterly reports to some of your clients?”
Out of 150 lawyers, two or three hands went up. Even so, I had my doubts, based on whose hands they were.
“So even when you are on top of your cases, you are not telling your clients what you’re doing,” Angus said.
BAD AT BUSINESS
What a strange situation we have. At a time when there is a glut of lawyers looking for work, big and little clients are turning from their traditional attorneys in disgust and taking their work in-house, and the pipeline of new lawyers coming from law schools is crammed beyond capacity, lawyers can’t figure out how to treat their clients right.
It’s not that we are bad lawyers. On the contrary, most American lawyers are quite competent, thoroughly honest and hardworking. But we seem to have something like Wizard of Oz-itis. Remember when Dorothy discovered the Wizard of Oz behind the curtain? She said, “You’re a very bad man!”
And he said, “No, I’m a very good man. I’m just a bad wizard.”
That’s the way many of us are. We’re very good lawyers. It’s just that we’re very bad businesspeople.
And the simple truth is, a law practice is a business. That takes away nothing from the professionalism that is involved. We just have to understand that a good law practice is also a well-run business. (And yet, a number of states that have mandatory continuing legal education do not give CLE credit for office management courses.)
Now suppose you could stay on top of all the files in your office—instead of them controlling you, you were controlling them. Then suppose that every 90 days you took stock of where you were in every case—seeing what you had done and what you had yet to do. Then you would write a short letter to every cli- ent, telling what had happened to his or her case in the last three months.
But wait a minute, you say. Is this remotely realistic? Good intentions run amok? Utopian ravings of a mad dreamer?
Actually, lots of business experts are shocked when they find that this is not what most lawyers do. If those quick-oil-change shops can send their customers a postcard every three months telling them it’s time for another oil change, then wills and trusts lawyers should be able to send letters to their clients every year or so telling them it’s time to review their estate planning documents—and litigators ought to be able to keep up with their clients, too.
But it is truly easier to say than to actually do.
The first step is to control the number of cases coming into your office. Most of us simply take on too much work.
When your docket is really too full, a number of things happen. For starters, your evenings and weekends—already strained—go entirely. Then lesser cases start to cause serious trouble as you concentrate on the bigger ones. Your calendar often lists you in two places at once, and you are able to manage only by figuring out which one you can cancel at the last minute.
The costs become unacceptable when you find yourself apologizing to the same judge for the third time in a month when you are late for a hearing or a conference.
Second, tell your clients what you are going to do and give them an idea of when you are going to do it (in addition to letting them know what it is going to cost). A simple handout listing the steps a case has to go through before it gets to trial can go a long way toward putting a client’s mind at ease.
Third, organize the way you prepare cases for trial. Spend an hour next Saturday morning listing all the things you normally do to get a case ready. Don’t worry about the order at this point. Just brainstorm your typical case preparation, writing down everything you can think of.
Now put your list aside for a minute and think about formal discovery. Most of us don’t have an organized way of approaching discovery. We just dig in and keep doing it until we can’t justify doing any more.
Start with interrogatories. Instead of firing off hundreds of useless questions, ask for facts. Get names, addresses, telephone numbers, model numbers, production runs—the kind of hard data that the other side must make available to you.
Don’t ask for opinions, admissions, information about conversations and other kinds of soft information. Using interrogatories for soft information only leads to equivocating answers, angry lawyers and contested hearings on discovery questions. If you use interrogatories the right way, you will only ask a few questions, but you will get a lot of useful information.
A MASTER PLAN
Next come document requests. the answers to your interrogatories help point you toward the documents you want and the people whose depositions you will take. But before you take any of those depositions, study the answers to the interrogatories and go through the documents. Few things are less productive than a deposition in which you don’t know what to ask because you haven’t studied the documents.
Now you’re ready for depositions. You should have an idea of what you want to pursue with each witness.
Finally come requests for admissions. Use them to clean up what is left over.
No matter how carefully you conduct discovery, by the time you are through taking depositions, you’ll think of some questions you should have asked but didn’t. The court won’t let you take a second deposition of any witness except under highly unusual circumstances—so what do you do?
You know the questions you would like to ask, and you know the answers you would like to get. So write out those answers—in English, not “Legal”—and submit them as requests for admissions. And if your state rules allow it, send supplementary interrogatories that the party must answer for each fact it refuses to admit.
Now take that four-part discovery plan and put it together with the list of everything else you do for case preparation. That gives you a master preparation plan for each of your cases. If you do it right, it should be only one page long—two at the most.
Set it up as a checklist and put a copy in the front of every trial notebook or file for each case in your office. Then check off each step as it’s finished.
Lean back for a second and think about what you’ve got: a simple case preparation plan that doubles as an instant status report.
Go ahead and dig into your compost heap and pull out a typical file. Read through it and see how long it takes you to get up to speed on where you are in the case. That 15 or 20 minutes you just took is what the preparation checklist—the instant status report—saves you each time you pick up the file.
Now look ahead and see yourself going over the checklists in all your active files, dictating your quarterly status reports as you go. Each takes only about five minutes, and you are on top of every case.
The ABA Journal is occasionally reprinting some of Jim McElhaney's most popular columns from past years. This article originally appeared in the Journal's February 1994 issue under the headline "Composting Files."
Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.