The Critical Path is the third pillar of the Litigator's Foundation. It is the route formed through Litigation by the functions the are necessary to prepare for trial.
The Litigator prioritizes the Critical Path and does not get sidetracked by things that “should” be done or “have” to be done
The Critical Path is comprised of the tasks and events that are the longest in duration and require the most interaction between the parties, the court and the lawyers. The Litigator prioritizes the Critical Path and does not get sidetracked by things that “should” be done or “have” to be done but are not necessary to Prepare for Trial. The functions on the Critical Path Functions must be initiated before anything else because they take the longest to perform.
Law school teaches a lawyer what he is supposed to know, but not what he is supposed to do
Like most novice-Litigators, I got my cases from older lawyers who had too much work to do themselves. The busier they were, the more work they had to give me—which was good, because I needed work. But being busy also meant they had less time to supervise and train me—which was bad, because I didn’t know what I was doing. Law school teaches a lawyer what he is supposed to know, but not what he is supposed to do and certainly not what a Litigator does. So, I was largely left to figure that out for myself what was necessary in a given case.
In retrospect, I can see the typicality of my situation. As his practice grows, any decent lawyer attracts clients and ends up with more work than he can handle, so he hires a new lawyer to help him. But most old lawyers don’t have (or don’t make) the time to teach young lawyers what a Litigator does and train them how to do it. One reason for that is economic—training and teaching aren’t billable events. But another is ability—training and teaching are not skills possessed by most lawyers, even if they are Missional. Having a skill is not the same as passing a skill on to another person.
Exacerbating this problem is a lawyer’s tendency to view the process of Litigation as a matter of instinct that must be obtained solely through experience rather than a set of transferable skills and techniques. Old lawyers know what to do and when (ideally) to do it by virtue of having learned it the hard way through trial (literally and figuratively) and error. Thus, while an old lawyer might be able to readily explain a discrete part of the Litigation process, like the taking of a deposition, if you asked him to describe how all the parts fit into the overall process he couldn’t do it very well because it is just something he knows in his bones and has never reduced to a systematic scheme.
Seeking to stay active in the file often meant that I did the wrong thing
As a novice I worked for a partner (“Alan”) who would exhort me to always stay active in the file but would never tell me what that looked like as a practical matter. Because he was a busy man (who I didn’t want to bother) I would just take what looked to me like the next most logical step, but since I didn’t know what was necessary it would really only be a matter of luck if I got it right. As a result, seeking to stay active in the file often meant that I did the wrong thing, leading my partner to look at me blankly, scratch his head and say (charitably) “OK, I guess I can see why you did that, and here’s what we’ll have to do to fix it.”
I didn’t know enough to say it then, but I would have been far less likely to have done the wrong thing had I understood the Litigation process in general and had a view of the strategy that my partner was using to resolve the specific dispute at hand. But, not having been trained that way himself, that is not how my partner treated me. Instead, as long as I stayed active in the file he let me plod along until circumstances forced him to have me to do something specific.
So, for example, I took my first deposition when Alan had to appear at a hearing on a temporary restraining order that he did not anticipate. Since he couldn’t be at both events simultaneously, he sent me to the deposition because he saw it as the less important event. That is not the ideal way to learn how to take a deposition. It is also not the best way to learn how to draft a complaint, defend a motion for summary judgment or pick a jury—but that’s pretty much how I learned to do all of those things, by trial (literally and figuratively) and error.
Like must novices, I bounced from task to event, over-preparing for the things that scared me and under-preparing for the ones I was too inexperienced to fully understand
Ultimately, in this haphazard way, I did learn how to do most of the things a Litigator does, but without any global concept of how any of those things fit into an overall process that led to resolution. Like must novices, I bounced from task to event, over-preparing for the things that scared me and under-preparing for the ones I was too inexperienced to fully understand. That’s how I found myself (ultimately) overcome with PTE after my Big Case and motivated by the unshakable conviction that this cannot continue.
That epiphany led me to deconstruct the process of Litigation and the role that Litigators play in it by first writing down every task that I routinely performed and each event in which I generally participated. At the time, as a solo-practitioner with no employees, I had to personally perform everything on my four-page list and did so without regard to its relative importance to any other task or event.
This universe of tasks and events formed a fog that obscured the truth from me that resolution is the essential purpose of Litigation. Staying active in the file left me feeling like a hopeless rat running on a wheel who could not see past the bars of his cage.
That feeling of exhausted hopelessness is what ultimately spurred me to find the Critical Path and stay on it to prepare for trial.