A LITIGATOR MUST STAY ORGANIZED
Through Organization a Litigator disciplines himself to do the hard things first
If you walked into my office you would probably say, “wow, you’re so neat”. I know, because that is what people usually say to me. But I’m not actually neat, I’m just easily distracted. For me, the only way to stay organized is to focus on one thing at a time. I do this by working from a Task list on my computer that I reprioritize every morning. That way, I make a conscious decision to work on what is most important rather than what is easiest or gives me the most satisfaction. If I were to do the latter, I would end up putting off the hard things for the easy ones until a looming deadline forced my hand or I was OBE (overcome by events).
Under my method, the only “file” (most of it is in the cloud) on my desk is the one related to the Task upon which I’m currently working. When I complete that Task, I put the file away. That’s why my office looks neat, because, at most, my desk has only one one file on it. But I’m not really neat, I’m just Grinding in the way that works best for me.
My way is not the only method of organization. I know Litigators who have files stacked all over their desk (and everywhere else in their office), with each stack representing something that must be done. The stack closest to the center of their desk is usually the one they think is most important. Where I am a “lister”, these lawyers are “stackers” who can thrive surrounded by paper. I can’t, so the only time my office looked like that was during a bout with PTE (Post-trial Exhaustion)—but that hasn’t happened since I started building my Foundation.
Disorganization impedes Missionality because it leads to missed deadlines
Neither stacking nor listing is the right way for every lawyer, but what is true of all Litigators is that they must be organized in some way to be Missional because disorganization is a significant impediment to Preparing for Trial—in three primary ways.
The first way is in the tracking of deadlines. Disorganized lawyers who miss deadlines compromise their clients’ Claims and Defenses because they are forced to seek grace from their OC (Opposing Counsel) or the Court, or to press forward deprived of whatever the deadline was there to enforce.
Take the deadline to identify an expert witness as an example. Having missed it, a lawyer might make a late identification and ask his OC to let that slide—which means he owes him a favor. If his OC declines, he then might ask the Court to extend the deadline—which is always tougher after it has already expired. Or, he might dispense with an expert altogether—which may harm his case. Whichever of the three paths he chooses, the lawyer’s Preparation for Trial will be less deliberate and competent, which means he will be less Missional.
The second way that disorganization impedes Missionality is in the handling of Documents
Even in a relatively small case, a commercial Litigator will find himself swimming in paper. At a minimum there will be the Documents his CL (Client) provides him at the outset of the case; correspondence from the OC that often attaches Documents; records unearthed by the CT (Case Team) during Claim investigation; and attachments to pleadings and discovery responses (from the CL, the Adverse Party and non-Parties). All of these sources combine into the Universe of Documents related to the case.
To deal with this mountain of paper, the Litigator must be constantly culling the Universe down to those critical few Documents that he will ultimately use as Trial exhibits to prove (or disprove) a Claim or Defense. The disorganized lawyer who does not have a disciplined approach to Document management cannot do this competently. He will find himself still sorting through the Universe on the eve of Trial, at which point it will be too late to be Missional.
What’s more, even if he is organized and disciplined, there is no way a Litigator can manage the Universe by himself, the way I tried to do it during my three years as a sole practitioner. This is one of the most important lessons I learned from my Big Case. Driven as I was, had there not been multiple defense counsel, all of whom were working (unlike me) as part of CT, I would never have been able to manage the multiple-hundreds of exhibits that were ultimately entered into evidence in that Trial.
The third and final way that disorganization impedes Missionality is that it causes the other players in the Litigation process to take the Litigator less seriously, which reduces the heat necessary to reach Resolution as quickly and efficiently as possible
Early in my career I worked for a Litigator named “Doug” who was a walking-talking set of contradictions. Externally, he was the most disorganized man, not just lawyer, but man I have ever known. Internally, he had one of the most organized minds of anyone I’ve ever met. But, in my opinion, that contradiction did not work to his advantage as a Litigator because it was seen by others as a bug rather than a feature.
Ostensibly Doug was a stacker, but not really because there was no overarching order or purpose to the files that were piled literally everywhere in his office. In truth, he wasn’t a stacker, he was a hoarder. Half of the files that covered every inch of his carpet were long-closed. He had no more reason to keep them than he would to have kept every back-issue of National Geographic in his office. In the center top drawer of his desk he had a business card from every lawyer he had ever met—there were over a thousand, but you would have been hard-pressed to find a functioning pen in there.
I don’t know how Doug worked in that office (although he did), but I do know that he never met with a client in there because if he had, the person would have thought they had retained a lunatic as their attorney. But he wasn’t crazy, he was a very good Trial lawyer from whom I learned much that I have emulated, but a lot that I haven’t because (unlike Doug) I cannot live a dual life of external chaos while maintaining anything close to the internal focus that Doug had. I can’t work the Grind that way.
Doug kept all of his deadlines in his head. He could remember the facts of each of his cases without looking at his notes (which were indecipherable anyway). He had no system to check conflicts, other than a dilapidated Rolodex that (in theory) would tell you if a potential AP (Adverse Party) had been a former client. In practice, Doug’s brain was the firm’s database.
I’m no psychologist, but I think Doug suffered from Colombo-syndrome. Like the TV detective, he wanted to disarm the OC, AP and Court with his wacky professor routine while he snuck up on them with his superior intellect. Maybe that worked, but in my opinion his first-class legal mind was dulled by his third-class system of organization. I think he just got a rush out of pulling rabbits out of hats during Trial rather than Grinding methodically through the Critical Path.
As a result, while Doug’s instinct were Missional his actions were not, because OCs and judges didn’t take him as seriously as they would have if he had been better organized. It was not a strategy built for the long-haul Grind.
To stay Missional, the Litigator must be and stay highly Organized through a systematic, disciplined and consistent approach to Preparing for Trial—both for his own benefit and for that of his Litigation Group.