DEFINING THE LITIGATION PROCESS
Updated: Apr 28, 2021
In my last post, I identified the fact that I was an ineffective Litigator as the source of my Post-trial Exhaustion. Having identified that as the problem, I began to search for a solution by asking myself an obvious question: what is effective? While the question was obvious, the answer wasn’t. At least it wasn’t obvious to me.
Identifying the Essential Skills
At my friend Kevin’s urging, I went back to my office and wrote down every single thing I did in my job—from changing the toner in the copy machine to arguing a motion for summary judgment. My list filled four pages of a legal pad. Then I went to see Kevin again.
He scrolled through my lengthy list of tasks and asked “are all these things are necessary?” That stumped me. “I don’t know really. I’ve never really thought about it that way. They are just the things I do.”
“Are any of these things more important than any of the others?” He asked.
“Of course. The toner has to be changed, but that isn’t as important as arguing a motion.”
Then Kevin asked me “are any of these more important things also essential?”
“Essential to what?”
“Essential to being effective. Can you identify the specific skills that are essential to being effective? That’s your next assignment.”
What is not Essential is the "process"
At first I didn’t think it would be possible. But after a few of hours of sorting and resorting my list, I was able to narrow it down to three skills that I believed were essential to effectiveness. Excited, I called Kevin and told what they were.
“That’s great,” he responded. “The first thing you have to do is figure out how to become excellent at those three skills.”
“OK, I think I can do that. But what comes after that? What about everything else on the list—the ‘non-essentials’. What do I do about those?”
“Those things are what forms your process. You need to go find people to help you do those things competently so that you can focus on being excellent at the essentials. You have to build a team.”
I knew Kevin was right, but I wasn’t happy about it
I had spent the first ten years of my practice in law firms and I hadn’t liked it much. Starting a solo practice had energized me because it had allowed me to do things the way I wanted to do them, even though I wasn’t doing them very well. You can’t do that in a law firm, regardless of where you are in the pecking order.
Law firms are not very well organized, at least Litigation practices aren’t. That’s not anybody’s fault, but rather the result of the chaotic nature of Litigation itself and the lack of an explicit process and defined roles. It’s a crazy circus with a bunch of clowns doing the best they can.
Within a firm, teamwork is ad hoc and accidental rather than deliberate. Busy partners grab overwhelmed associates and paralegals when they need them rather than developing them into a team before they find themselves overcome by events. As a result, associates and paralegals find themselves with pieces of cases, performing discrete tasks as best they can without a full understanding of the partner’s case strategy—if he has one.
This had driven me me crazy when I was an associate, but not crazy enough to try to change anything when I became a partner. Just as I had been grabbed by partners, I just grabbed associates and paralegals when I needed them rather than developing them into a team. Just as I had worked on cases for partners without understanding where they were going, I didn’t share my case strategy with anyone working with me.
Why would I do that? The truth?
The truth is that I didn’t know how to develop a litigation team or devise a case strategy. Nothing I learned in law school or my years as a Novice had taught me to do either of those things. The only strategy I ever had was to stay active in the file until somebody surrendered and try the case if nobody did. That method had led me to try a lot of cases, but as I had recognized, it had not made me effective at Litigation.
But even if I had learned how to devise a case strategy, I would still need a team to see it through this Litigation process that I now saw as a critical part of the solution to my Problem. There was no point in putting a team together if I didn’t know what I was going to ask the team members to do. So, defining the process had to be done before team development. And for me to do that, I had to start with a clear understanding of what it is a Litigator does and why he does it.