Case Planning

How we plan and manage cases and caseloads using the GTD workflow method.

Detailed Knowledge Is Mandatory

Every lawyer and LSS is required to know this Procedure intimately from top to bottom, and to continuously demonstrate familiarity with all that it contains. You must use discipline and attention to detail to ensure that you adhere to all of the comprehensive requirements set forth below.

Before offering you a position, we informed you that working here would be very different from working in any other law firm. The fact that all Firm personnel must follow this Procedure to the letter is a major reason why this is true.

Despite our pre-hiring disclaimers, professionals with experience sometimes join the Firm thinking that their old skills and habits will be sufficient and that this job will be essentially the same as their last one—which is not true. In training new personnel of all levels of experience, our first task is to replace many old habits and to disabuse them of the idea that they already know how we expect legal matters to be handled. Our unique standards and practices are the key to our success—which we measure by the results we obtain.

Do not succumb to the temptation to merely skim this material for major concepts, or to read it once and consider this piece of work done. You cannot get by with only a superficial understanding of this material. Knowing the “big picture” will be insufficient; you must master the details. We all have lots of work to do, but if you don’t master this material then you simply will not know exactly what that work is, or how we expect you to do it. You will be caught off guard when you discover that you have sabotaged yourself by glossing over the contents of this Procedure.

Learning all that is contained below is a major achievement, as well as a minimum job requirement. This is a lengthy document, and what it contains is more valuable to your progress as an elite litigator than all you learned to pass the bar examination. No lawyer has ever failed to significantly improve their litigation ability and results in cases by faithfully adhering to all of what this Procedure requires. With these tools and the discipline to utilize them, you will also experience greater pleasure in working as a litigator, with a commensurate reduction in your stress level, because you will avoid many of the situations that cause stress. Your confidence, creativity, credibility and standing in the legal community will increase substantially. That is a promise.

Case Planning Is An Essential Skill

Who controls the manner in which your cases unfold and develop? Your opponent, your judge and your jury each hold varying degrees of power, but if you relinquish your vast power to them (which happens automatically when you cease to operate proactively), then you will just be along for what could be a very rough ride.

Some judges and lawyers say that attorneys overestimate how important they are to the outcome of a case. What these so-called “authorities” overlook is that, while the package of evidence received by jurors results in verdicts that seem to bypass lame courtroom theatrics, the fundamental makeup of the information judges and jurors receive is the direct product of lawyer skill. Improperly trained lawyers are often tempted to surrender to fatalistic notions, immersing themselves in the comfortable but completely erroneous belief that their lack of skill and diligence will not affect the outcomes of their cases. It has been proven again and again that in the American system of justice, lawyer skill remains a predominant factor in the outcome of a case.

Excellent lawyers win more cases. They obtain better settlements. Preparation is the hallmarks of a great litigator, and skillful case planning is the key to effective preparation.

To use a simple analogy, skillful and disciplined case planning is the process that transforms your handling of a lawsuit from riding as a helpless passenger on a rollercoaster into skillfully driving a Formula One race car. It will keep you in a position of maxim control, operating as an elite professional at the top of your game.

Case planning is functionally more important than other core litigation skills.

Core litigation skills—such as legal analysis, research, writing, taking and defending depositions, verbal communication, investigation, client development and the ability to digest large volumes of information—are all essential, but none of these is a substitute for skillful case planning. Indeed, with poor case planning those other skills are likely to produce less than stellar results, despite how important they are in their own right.

The best litigators are masters at the art of case planning, which requires intelligence, foresight, discipline, creativity and, above all, attention to detail. Attorneys who are weak at case planning tend to be weak as litigators regardless of what other skills they may possess.

It is shocking that case planning is not taught in law school, but not to worry—it is taught here.

Professional case planning requires an attitude of diligence, vigilance and conscientiousness.

The bedrock ingredients of skillful case management are: (a) attention to detail; (b) the ability to predict what will be necessary to have completed when deadlines arrive, and at trial; (c) close engagement with the client; (d) a system to keep track of tasks, case information, deadlines, appointments and documents (such as Daylite); and (e) a procedural method to ensure that you do the right things, in the right way, and at the proper times. This last item, item (e), is what we refer to as case planning. It is the central component of our case management process. Without it, you will miss valuable opportunities to advance your client’s cause, and you may actually do harm to your client by allowing your work to fall below the standard of care governing our professional services.

Poor case planning is the leading cause of “job hopping” in the litigation world.

It is ever so tempting to take the easiest path through a lawsuit, and a surprising number of lawyers do just that! Why is this so? Depending upon the person in question, there are three typical reasons: (1) the lawyer is lazy or indolent, and puts off work unless an urgent situation arises, in which case he will do the bare minimum to “put out the fire” before returning to his comfortably numb existence; (2) the lawyer has never been trained in detailed and systematic case planning, and simply doesn’t know any better; and (3) the lawyer has too many cases.

Lawyers who are lazy and undisciplined, improperly trained or overworked tend to react to one emergency after another, without thinking much about the whole collection of tasks to be performed in a case and whether their to-do list is complete and appropriate for the case at hand. Their lives are fraught with stress and disappointment because they rarely obtain successful results, and feel that no one respects them; in the face of a growing list of client complaints and poor performance reviews, they tell themselves that they are under-appreciated. After a year or two at a new job, their mistakes begin to pile up to such a degree that getting fired begins to loom as a distinct possibility, so they start sending out resumes. They get a new job, and the cycle re-starts itself.

Lawyers who are simply overworked, but who are skilled case planners, present a different problem, and thus require a different solution. We have a Policy designed to address this problem entitled The Optimum Caseload, as well as a related training video from our “Stress Management For Litigators” series entitled The Ideal Caseload.

Overview & Introduction: What You Will Learn To Do

So now it is time to delve into just exactly what case planning involves, and how to do it well. Let us begin with a highly simplified summary of what you will learn to do. While there is a large amount of detail provided here, the overarching concept of case planning can be stated simply:

In order to assist you in your assimilation of the information below, it is helpful to have a map that will give you the “30,000 foot view” of what to expect. The diagram below shows you how the primary facets of case planning begin with strategic planning, which leads to tactical task planning. Tactical task planning is the listing of tasks that should be performed in a case, and when they must be performed in relationship to other tasks and various goals. For example, it is necessary to file Initial Disclosures before serving written discovery or taking depositions. Knowing what steps you must perform in order to complete your Initial Disclosures is essential.

What you see above is basically a cycle of action, which begins with a rigorous analysis of the evidence that is, or may be, available in your case if you dig for it, understanding the substantive and procedural rules of law that apply to your case, and then developing a framework for your trial presentation that evolves over time (Step 1). Next, you begin to list the tasks that must be completed during each of the six stages of case planning, starting with our pre-written checklists which are embedded as “Pipeline” stages in Daylite, then modifying and adding to them to suit the needs of your case. (Step 2). With Steps 1 and 2 completed for the first time (as these are subject to continuous revision), you report your tasks and plans to the client, noting the purpose of each step, getting approval for all your steps, and developing budgets (Step 3). As you work through your task lists (Step 4), you will continue to revise your task lists as your are completing tasks as you work your way through the case. (Step 5) Throughout all of this, you must never lose sight of the exigencies of trial and how you will get your evidence admitted at trial so that you will not face undue interference from the judge or your opponent based upon blown deadlines, lack of foundation or other admissibility problems. You will work backward from an imaginary ideal trial presentation and find ways to make it happen.

How You Input Tasks Is Important

When you enter a task in Daylite, which is the only place you will keep track of your to-do items, you must be sure to link the task to the matter. You must establish a sensible internal due date so that the tasks that must be accomplished first are handled in the proper sequence. You should link necessary items to complete the task so that you can save time later by not having to search for the documents you will need. You can insert further details, contacts, web-links and SharePoint document links to tasks so that all you have to do is click on them in order to start performing your tasks.

The words you use in a task description are very important, because when you see the task it should compel specific action. The more specific, the better. Well-worded task descriptions make it obvious what you should do and should not present you with the need to puzzle out how you will perform a given task. This will make the process of hammering through your task list much, much easier.

Example: Initial Disclosures. Which would you rather see on your to-do list? A single task that says, “Serve Initial Disclosures,” or a series of sub-tasks such as the following in order to meet the Initial Disclosure deadline:

• Jones—Verify calendared deadline for Initial Disclosures
• Jones—Issue litigation hold notice to client
• Jones—Issue correspondence to client explaining the Initial Disclosure requirement
• Jones—Schedule call with client representatives to discuss available documents and known witnesses
  Jones—Send client link to Client Upload Dropbox (SharePoint)
• Jones—Review all client documents for content privilege, relevancy & responsiveness (per Procedure)
  Jones—Interview Albert Brecht (facts, witnesses, documents)
• Jones—Interview Dave Thomas (facts, witnesses, documents)
• Jones—Interview Mark Jensen (facts, witnesses, documents)
• Jones—Interview Arthur Beeman (facts, witnesses, documents)
• Jones—Interview Det. James Carter
• Jones—Prepare itemization of damages on counterclaims
• Jones—Request certified copy of insurance policy from Chubb
• Jones—Request financial records from client’s accountant, Mark Allen
• Jones—Search for Internet records relating to the plaintiff (social media, treatises, court records)
• Jones—Request accident report and transcript of 911 call

The GTD System.

You have probably been hearing about “GTD,” which is the method we employ to manage workflow. GTD stands for Getting Things Done, based on a book by David Allen entitled Getting Things Done: The Art of Stress Free Productivity. Allen’s GTD method has become immensely popular among executives and professionals who must manage a heavy workload consisting of numerous and complex tasks. In addition to being able to download the entire book by clicking the link above, this website contains several procedures and practice guides that explain, or at least make reference to, the GTD method. Because GTD is the core of our case planning process, it is necessary for you to have at least a basic understanding of it before moving on to the rest this Procedure. In addition to what is written below, the following three excellent videos by David Allen will provide you with an excellent understanding (and you’ll likely find them entertaining):

GTD: Free your mind and do your work.

The central tenet of GTD is to get all the “stuff” you have to do out of your head so that you can focus on what you are actually doing, comfortable in the knowledge that it is the thing you should be working on right now. That way, you can give it your individed attention and remain fully engaged in your actual work. “The mind was made for having ideas, but not for keeping track of them,” says Allen. The Firm uses Daylite as the core of its GTD process because it was designed by Marketcircle for exactly that. In fact, for the first several years after Daylite was released (versions 1 through 4), Marketcircle featured a picture of David Allen on home page of its website.

At its heart, the GTD system operates as a funnel, taking all of your incoming “stuff” and processing it. The way this is done is to collect all your tasks, ideas and reminders into a small number of “inboxes” (such as email, voice mail, a stack of notes, letters and forms) and process your way through each with the following system.

Process details.

You have many sources of incoming “stuff,” which are shown in the grey box at the top of the chart. You receive phone calls, during which you make promises to do things. You jot those promises down as they are made, so that you do not forget them, either on a pad, sticky note or your OneNote case notebook. The same thing happens in meetings, as well as when you have ideas. The product of this is that you have notes, voice mail messages (which are automatically forwarded to your email if they are on our GoTo phone system) and email to process. You may even have some paper mail. You take each of these and process them one at a time, as follows. You first ask yourself, “What is it?” Then you ask yourself, “Is it actionable?”

If the item is not immediately actionable, you may want to save it as a task with “someday” as a due date so that it can incubate over time in your mind. (There is a “someday” due date option in Daylite.) Or you may want to save it, as when you archive an email with no task associated with it. You may want to keep it as a reference, so you store it in SharePoint or your OneDrive cloud storage. Often you will simply want to trash it.

If the item is actionable—meaning that there is something you need to do about it or with it, you ask yourself, “What is the next action?” This is where the magic starts. Taking the time to define the next action with precision is the key to entering tasks correctly. Next, you ask yourself, “Can this be done in less than two minutes or less?” If so, you do it right then. This is known as the Two Minute Rule.

Through the steps discussed so far, you get rid of all of the items that clutter your inbox and your mind as quickly as possible, without procrastination.

Then we come to those items that represent subparts of a bigger project—a case. If the task to be performed as a stand-alone item, such as researching a specific legal issue or reading a lengthy document, you may wish to simply create a task in Daylite. If it is an email that will take more than two minutes to answer, you may wish to make that email a task in Daylite by using the Daylite Mail Assistant, but be sure to change the description of the task from the subject of the email into words that compel specific action, such as “Respond to Bob’s email about settlement value.” The original email will be automatically linked to the task, and you can adjust the other task fields as appropriate without leaving your Apple mail application.

On the other hand, if the task is related to other tasks, particularly in the context of the overall case management process, then you must engage in some case planning when you enter that task and the other tasks that will be related to it, using the methods described below.

In this manner, every item of “stuff” that you process ends up on one of four possible places: Daylite, email archive, document archive or trash. The key is to process them one at a time. For each actionable item posted to Daylite, ask yourself: “Is this a task or an event?” and enter it accordingly. Set appropriate reminders so that it won’t sneak up on you. Then ask, “Am I the right person to do this?” If not, delegate the item using the “Delegate” option for tasks and appointments in Daylite.

Then you take off your GTD/Daylite processing and planning hat, and put on your worker-bee hat and start performing tasks.

Consider the effect.

When you consider all of the things that you need to do in all of your cases without an external system to assist you, your mind will become a garbage can full of conflicting priorities. You will save yourself the time and energy of processing and organizing your work, but you will stagger through your workload uncertainly, worried about dropping balls and doing exactly that—dropping balls. Just as you settle in to work on a task, you will become distracted by the nagging fear that you really should be working on something else. You will constantly interrupt your own work, and may find yourself flitting back and forth between tasks with the attention span of a cocker spaniel. You will find that some very important tasks keep being pushed back until they put a knot in your stomach.

This is one of the main causes of procrastination. The notion that we can “multitask” is a myth. No one can perform at their best when trying to do more than one thing at a time. Trying to multitask is merely a romantic name for being unable to stay focused on what you should be doing, because you are trying to keep track of everything you must do by storing it in your head. When you multitask, nothing you do receives your full attention. “But I give all of it my full attention,” you might say. Simply put, that is a fantasy. Prove it to yourself: try to have a meaningful conversation with someone who is trying to process their email on their phone. The other person will think it is working, but you will know it is not. Now add this to the equation: having a simple conversation is not nearly as demanding as performing complex legal tasks.

Divided attention kills performance. Getting into the habit of trying to multitask actually shortens your attention span and leads to errors. It is both frustrating and extremely tiring. People tell themselves that they can multitask or “fly by the seat of their pants” because they simply have too much to do, or have fallen behind in their work. With multiple deadlines rapidly approaching, they begin to panic and dash through things that should be done with care.

We occasionally hear lawyers say, “I know what I’m supposed to do and what’s most important. I don’t need to waste my time with make-work assignments such as keeping track of tasks and deadlines in a computerized database.” Such lawyers are intimidated at first by what they think will be an arduous process that will slow them down. They believe that doing work is more important than thinking about it. These are understandable reactions, but they are dead wrong. Imagine driving from Denver to Tulsa under time pressure, and deciding that you have no time to stop for fuel. Sure, stopping for fuel seems to slow you down, but it actually speeds you up. Running out of gas in a car and missing key tasks in a case are very similar events in that they both spring from a lack of foresight. The short-sighted easy way is almost always a bad way.

Proven and documented fact. Decades of experience has taught us that lawyers who do not employ a system such as GTD to manage their workflow find themselves on the courthouse steps woefully unprepared. They tend to complete less than 50% of what they should have by the time it is too late. Without careful planning, they don’t even think of most of what they need to do to meet a deadline or win a case, and without devoted adherence to the monitoring and upkeep of their workflow system, they don’t even know where they stand. The time it takes to do thorough and detailed case planning with the GTD method in Daylite will pay for itself ten times over as you progress through a case.

Human memory is fallible. How would you feel if you were riding on an airplane and you found out that the pilot didn’t bother to refer to the checklists that come with the aircraft? Would you be afraid that he might miss something? In our video on Attention to Detail, we cite an example of a crash during takeoff in which dozens were killed because the pilot forgot to extend the flaps before commencing his takeoff—an item that is on the checklist. This is why the FAA requires pilots to formally refer to their checklists for every phase of flight, regardless of how well the pilots think they know them.

Why can’t I use my own system? It is common for the Firm to hire experienced lawyers, many of whom have developed systems of their own. Some use spreadsheets. Others use handwritten lists. Still others use sticky notes. Some use a computerized calendaring and task-tracking system which does not integrate with our system. Most of them are reluctant to move away from that with which they are familiar, and are reluctant to completely re-tool their approach to case management, so they ask, “Why can’t I use my own system?”

We have found that whether a lawyer can rapidly adapt to our software, systems and methods is diagnostic of how well they will fit into the firm in other ways. Lawyers who are reluctant to integrate with our team, either socially or technologically, almost never work out here because their professional goals do not align with ours. As an aside, they tend to be job-hoppers because their “outsider” mentality chronically deprives them of the ability to integrate with this or any other team.

We do not permit lawyers or support staff to run their own private systems because: (a) their systems lack the robust nature of our GTD/Daylite system and the benefits that following this Procedure will provide; (b) we have yet to see any lawyer using some other system perform as effectively as those who follow Firm Procedures, because they have not invested even a fraction of the time and effort developing their systems as we have; (c) we can’t keep track of what they are doing, which is essential to Firm management; (d) lawyers who can’t adapt to our systems tend to be uncooperative in other areas and cause problems for our team with their “outsider” mentality; (e) we are a law firm, not an office-sharing complex; (i) lawyers who cannot adapt to new ways lack the flexibility needed to reach the top of this profession; (j) lawyers who quickly learn, and abide by our systems tend to be able to learn a lot of new things, which is a minimum job requirement; and (k) it is not difficult lawyers who are willing to cooperate.

The value of a well-organized task list.

Scroll back up and look once again at the list of sub-tasks that will make filing Initial Disclosures in the Jones case easier to accomplish. What if you had a checklist like that one to follow every time you prepared Initial Disclosures in a case? Note that the description of a task must compel action through clearly stated actions. There is no “figuring out” what each task requires. It is obvious that the steps to prepare Initial Disclosures, when stated with such specificity, will vary from case to case. If you skip important steps, your Initial Disclosures will be insufficient, which could cause great trouble down the road in the form of expensive and stressful motions practice—or it could quite literally cost you the case. Below, this Procedure offers many pre-built checklists to assist in each stage of your case planning, but generic checklists, while extremely valuable, do not anticipate all that must be done in a given matter. Take for example the separately-listed tasks related to witness interviews in the example above. If you had entered a single task that simply said, “Jones—Intwerview all witnesses,” you would be lost in the vagueness of it because it doesn’t tell you specifically what to do.

Imagine if you spent 90% of your productive hours working from a task list that listed items by due dates and level of importance. How easy your life would be! Now imagine if you spent 10% of your productive hours building and maintaining those task lists on a case-by-case basis.

Goals, deadlines and appointments are not tasks.

A goal is an objective, a thing to be achieved, but by itself it is not a task. For example, you may have the goal of “winning the case,” and it will seem like a giant task to do so, but it will require hundreds of completed tasks just to give you a fighting chance. Breaking your tasks down to clearly stated individual action items will keep you on the road to winning the case. You may have “completing discovery” as a goal,  but that would be useless to list as a task. Rather, you input the deadline—the discovery cutoff—as an appointment (event) in Daylight; then input the separate tasks that are needed to reach this goal, such as, “Respond to plaintiff’s interrogatories,” “Depose Jackie Dawson,” “Draft second set of interrogatories” and “File motion to compel.” When you have completed all of those tasks you have achieved the goal of completing discovery prior to the discovery cutoff.

A deadline is a date, an event, and we list it in Daylite as a day-long appointment. You may need to complete many tasks in order to meet a deadline, and when you add those tasks to Daylite you must establish sensible “internal” due dates for each task so that Daylite can sequence those tasks for you, then you complete your tasks in a logical order. Your calendar is not your task list.

Similarly, an appointment is an event, not a task. It has a date, time and place where you must do other work. You may list the steps necessary to prepare for the appointment as individual tasks, and you will obviously enter a due date (sometimes referred to as an “internal” deadline) for each of those tasks that is earlier than the appointment. When you enter an appointment in Daylite, you must link it to the matter so that you can see all of the appointments and deadlines in a case in a single view.

Note also that you can also link many other items to a task, such as one or more contacts, documents and web-links. You can also add notes to tasks, deadlines and appointments. When you see your next task on your list and to it are linked the key items you will need to have at hand when you perform the task, it makes doing the task much easier. Example: a task reads, “Read the Association’s By-Laws,” and the link to the 90-page document is linked to the task. You simply click it and download the document, annotate it in Acrobat or Preview, and then upload it into the “Working Copies” library. Then you check the task off as DONE, and bill for it. Then go to the next task on your list.

Your life can—and must—be as beautifully organized as what is described above. We accept nothing less.

Daylite pipelines and activity sets.

Below you will find separate checklists for each of the stages of a case. Within Daylite, we have created Pipelines, which are automated stages used in Daylite to assign groups of tasks to users. For more information about pipelines and other Daylite training, click here. Pipelines automatically assign all of these checklist tasks for each stage of the case to the Principally Responsible Attorney (PRA). An early Stage 1 task is for the PRA to modify the task list after assigning the Case Management Pipeline to a matter.

One of the most important aspects of early adjustment and tailoring of the automated Case Management Pipeline tasks is to carefully review the due dates that are set as standard in most of the Stage 1-3 tasks, and to link the tasks to the deadlines that are imposed by the Rules of Civil Procedure and court orders. In that way, case planning is made easier because it is then possible to spot, in an isolated fashion, all of the tasks that have been recorded to meet a particular deadline, and to ensure that the internally set due dates are proper and logical in light of the actual deadlines.

This one feature of our firm technology is likely to reduce by 90 percent or more the likelihood that key measures will not be performed in a timely manner. Further, by automating a significant portion of case management, we have freed your mind to perform more advanced case management and planning, while at the same time stimulating thought along lines that are sometimes forgotten.

The process of case planning is iterative, meaning that it consists of several steps that are repeated in a cyclical fashion. As you cycle through the steps on your way to trial, you are in a race with your opponent to see who can do the best job of completely packaging a case so that you and your case are both truly ready for trial.

You should be reviewing your task lists at least weekly. Doing so will ensure that you check off as “done” those tasks that have been completed (a pleasant experience), that you have billed for all of them, that you think of new tasks that did not occur to you at an earlier time, and that you can return to one-task-at-a-time work with total comfort that your date-sequenced task list is complete and correctly designed. As mentioned above, this process generally takes no more than 10% of your productive time.

Theory of the Case

The trick to successful case planning is to always operate with a Theory of the Case as your central guiding concept. We refer to it as the “TOC”—a term in constant use here. This Procedure will teach you how to formulate optimum TOCs. The definition of a TOC is: a plan for how to develop and present your client’s case in a way that will maximize favorable decisions by judges and juries. Developing a TOC involves a principle known as psychodynamic integration, which is the process of resonating with others through communication (visual, written and auditory), in a manner that brings them to adopt your proffered realities, viewpoints and position. Psychodynamic integration is a core concept in the art and science of persuasion as it is taught in the Firm.

The TOC will serve as your primary means of planning your actions and making decisions throughout the lifespan of a case. It will, of course, change over time as you learn new facts and complete legal research. There are key steps to be performed in order to ensure that you have every opportunity to refine and perfect your TOC as early in a case as possible, though on occasion late-breaking developments may require you to change your TOC shortly before—or even during—the trial of your case.

Below are links to useful articles on Theory of the Case, which will supplement what you learn studying this Procedure:

• Developing Your Case Theory Classroom Law Project
• Theory Of The Case: How And Why Martin Sclisizzi
• Litigation Strategy: Theme and Theory Wikiwand
• Preparing A Case Theory (Unknown Author)
• The Theory Of The Case James W. McElhaney

You should begin to develop a Theory of the Case (TOC) at very outset of a case, and carefully refine it as your file documentation and your understanding of the case expand and develop. Your TOC is your basic battle strategy, your “North Star,” your means of navigation and your plan for victory. It is the wellspring of most of the tactics you employ, for your actions should be dictated by your own plans rather than the opponent’s actions. It is what guides you when decisions must be made quickly or under pressure. It is what puts your client’s mind at ease from the beginning. It is what gives you a sense of purpose and confidence which courts respect and opponents fear. It is what keeps you on track as you move through the case.

The Fallacy of Sage Restraint: Some lawyers claim to be so cautious and careful that they hold off on forming “premature” conclusions or plans until they “have all the facts.” Some have mastered the theatre of appearing sage and wise in taking such an approach. Simply put: these lawyers are imbeciles; foolish and lazy; such phony scholars depend upon play-acting to camouflage their failure to think and work with the information they have available. You may, from time to time, seek to lull your opponent into a false sense of security by appearing as if you were approaching your case in this manner, but do not ever actually fall prey to the lure of this justification for inaction.

Your TOC will change—sometimes drastically—as the case develops, but you still must always have a working theory nonetheless. Reminding your client that your current theories and plans are subject to constant re-evaluation in the dynamic environment of litigation is wise. Remaining flexible is essential, but failing to plan is never excusable, so don’t be tempted to think that reserving judgment until all the facts are in is anything other than an excuse for being docile and inert, which are deadly flaws in a litigator. There is a fundamental principle of warfare (and make no mistake, litigation is a form of civilized warfare) which states: “The warrior who acts with purpose and who controls of the course of the battle will prevail over inactive, immobile or unprepared foes.” This is simply another way of describing the initiator’s advantage.

When a lawyer is empowered by a well-designed TOC, he or she can make optimum decisions and identify and execute effective measures to improve their chance of success. Further, thus empowered, an attorney can add additional important tasks to the tasklist in a case which supplement these checklists.

Most clients know when lawyers have well thought-out plans, as well when they are merely faking the appearance of skill and wisdom. Lawyers operating on skillfully devised TOCs are much better able to communicate with clients, and do not leave them wondering what is transpiring and why.

We provide less experienced personnel with the benefit of supervision by attorneys with extensive training in our litigation methods. We seek to prevent case supervision from becoming a full-time job for a supervising lawyer or creating financially wasteful redundancies. In our firm, a supervising attorney is sometimes referred to as a “Q,” which is a nickname that evolved over time to reflect a supervisor’s Quality Control function, as shown in the Division 5 (Qualification) section of our Organizing Board.

Status reports.

In addition to the steps outlined here, status reports should be transmitted continuously to clients. The case planning steps covered in this Procedure will assist in drafting those reports, and in formulating budgets that many clients require. Reporting is an action that is separate from, but heavily dependent upon, skillful case planning. A few of the key junctures at which status reports are mandatory are mentioned below and in other Policies and Procedures, but it is essential to remember that reporting is an ongoing obligation that exists separately from case planning. Our general rule regarding status reports is to write a report every time something important happens in a case, and to set repeating reminders in Daylite to ensure that you think about writing update reports to clients at least every three weeks. For more on the subject of status reports, please review our Practice Guide entitled Status Reports.

Note: If you think of common tasks that are not listed here but should be, please let us know so that we can continue to improve this Procedure.

Strategy And Tactics

Lawyers must think both strategically and tactically. Many lawyers do not understand the difference between these two things, or how the interplay between them drives and informs effective case management. Gaining a full conceptual understanding of these fundamentals is more than just a philosophical exercise—it is the first step to understanding how to formulate brilliant TOCs. When your knowledge is firmly grounded in comprehension of these fundamentals, your ability to apply the principles and specific methods set forth here will be greatly enhanced.

Strategy: what is the goal? Tactics: how will that goal be achieved?

In broad terms, strategy refers to determining what should be accomplished, while tactics are the means by which it will be done. Strategic thinking begets tactical planning and execution. A more specific way of stating this relationship is that analysis leads to synthesis, which leads to development, which leads to action, as depicted in a diagram below.

Strategic planning is a broader and more generalized process than tactical planning and execution, and indeed encompases tactical planning as a subpart of its anatomy. Strategic planning, completed in the absence of tactical planning, leads to little more than abstract goal setting. Goals alone fail to produce workable results.

The fruit of these efforts must be a series of brilliantly conceived and skillfully executed steps, completed in the proper order and on time, so that your chances of winning your case are absolutely maximized.

Defining what “win” means.

There exists a tension between two principles that often leads to confusion and stress. These opposing principles are:

1. Establish goals that are realistic and attainable, otherwise you set yourself up for failure; and
2. You can achieve much better results if you set fantastic goals, far above what on first blush you assume to be possible.

The way to reconcile these two ideas is to recognize that they are both true. Your job as a litigator is to optimize the outcome, reaching a level of success that may at one time have seemed to be impossible. Setting impossible goals is silly, but assuming that something is impossible, without first evaluating all potential means of achieving that outcome, is an insidious form of self-sabotage. Finding ways to achieve goals that appear to be impossible—but are not—is the art of gifted lawyers. Being ‘realistic’ means knowing all there is to know about your own preconceptions, unwarranted assumptions, fears and self-imposed limitations, and how these personal traits interfere with your performance. You can prevent them from interference from interfering with your level of performance.

Through deep knowledge of law and legal tactics, human nature, and the specialized aspects of the fields of expertise that are involved in your case, you can find solutions that evade casual inspection. Information is useless if it can’t be applied. So, how do you actually apply the principle that analysis drives synthesis, which drives development, which drives action?

The Anatomy of Strategic Litigation Planning

The diagram below maps exactly how strategy drives tactics. It must be studied thoroughly and with care so that you know how to think through your strategy before planning your tactical steps:

As you study the above diagram, you will come to some realizations that will help you understand exactly how our tactical planning fits within the broader overall context of our strategic thinking–not just abstractly, but in real and concrete specific ways. Note where Case ‘Planning In Stages’ fits within the overarching scheme strategic planning.

Case Planning Stages

The core of our systematic approach to case planning is the manner in which we divide the life of a case into six separate stages, assigning basic priorities to each. Every stage has a set of overall goals, which are facilitated by continuously evolving checklists for each stage. The checklists are merely a starting point for a lawyer’s thought process and planning for each stage. Not all of the items on the checklist for each stage will apply to a particular case; the checklists will often not be sufficient by themselves to guide a lawyer’s complete and thorough planning for each stage. The attorney must carefully consider the matter and ask, what else will be needed in this particular case?

There are 6 essential stages of a civil action, as shown below. You may have noticed the stages embedded in the strategic planning diagram above. Each stage builds on the earlier stages to guide the logical, progressive development of a case, from the initial assignment to the trial and potentially through an appeal.

Carefully study this diagram. Remember, you are not only looking for the general concept that these various boxes fit together or relate to one another. Instead, you are trying to acquire a conceptual understanding of the details of how these elements interact. Once you can draw this box from memory (without all the list items under each case stage), you are ready to move into the cornerstone of case planning, which is your Theory of the Case.

Do not fall prey to the temptation to use the Case Planning Stages diagram shown above as a substitute for the detailed information and checklists contained elsewhere in this Procedure, for it is intended only to convey the conceptual structure of case planning in a “bird’s eye view” so that you can more easily understand what follows.

This case anatomy tends to “front-load” work, in the sense that there is a great deal of activity at the very beginning of a case. If that work is done well and on time, the discovery and motions phases become much easier to manage. Moreover, by thoroughly scripting your trial presentation, including your order of proof, at least two months before the discovery cutoff, you gain the ability to correct mistakes and oversights that only become apparent when this kind of trial planning is done. This is the distinctive characteristic of our case planning scheme.

How it all comes together.

It is immensely useful for attorneys and support staff to refer to written procedures and checklists in the process of case planning. Even attorneys with years of experience benefit from the checklists provided below and our other Procedures, which spark new ideas while reducing the possibility of overlooking or forgetting important steps. The checklists below cover many bases, but will never be sufficient in any given case.

Most lawyers have a habit of delaying their actual trial preparation until trial is at hand, typically commencing the process of scheduling witnesses and selecting exhibits, formulating arguments (opening and closing) and figuring out the trial theme less than 30 days before trial. Those lawyers invariably discover that several key tasks should have been performed but were not, and now it is too late to rectify the problem. Foundational evidence has not been identified and disclosed in a timely fashion, expert designations are incompete, admissibility and other evidentiary concerns have been overlooked, and the trial presentation will therefore not be what the attorney wants it to be. This is why the last month before trial is so terribly stressful for most trial lawyers.

Preliminary trial preparation should begin on the day the case comes in the door. Detailed trial preparation should be done before the end of Stage 2.

Detailed trial preparation, which is discussed in greater detail below should consist (at a minimum) of the following:

1. Order of Proof: Planning the order of witnesses who will testify at trial, what they will cover, and which exhibits they will sponsor into evidence;
2. Evidentiary Motions: Filing motions in limine and other trial motions;
3. Arguments: Planning of opening and closing arguments;
4. Jury Selection: Plainning voir dire;
5. Jury Instructions: Selection and listing of custom and stock jury instructions;
6. Trial Briefs: Preparation of trial briefs;
7. Witnesses: Reminding witnesses of their scheduled trial times and verifying that they are under subpoena;
8. Planning Direct and Cross: Reviewing depositions and outlines of testimony;
9. Videos: Editing preservation video testimony;
10. Filings: Filing final exhibit and witness lists;
11. Stipulations: Discussing final stipulations (such as authenticity, pre-admission of exhibits and undisputed facts);
12. Witness Prep: Scheduling time to prepare witnesses to testify at trial and conducting those meetings; and
13. Mediation: In most cases, trying to jam in a day of mediation.

Waiting until you are a month from trial to do all of these things is a grave error and causes terrible stress—not only for you but for the rest of our staff. It is a product of laziness and makes your trial very much harder to win. Don’t do it. Start your final trial preparation well before the discovery cutoff, and use the remaining time only to polish and refine your trial presentation during Stage 4. If you do these things, you will glide calmly into the courtroom on the first morning of trial filled with confidence that will be obvious to your judge, your opponent and your jury.

Stage 1:  Initial Review

Core concepts:

Stage 1 is by far the most important stage of a case. What you do in this phase directly controls how effective you will be during the stages to follow.

Case planning depends above all else on your detailed knowledge of the case. (On this point, see our Policy regarding Reading and Knowledge.) Your key priority in Stage 1 is to rapidly learn the facts of the case, the contents of your files and to immediately initiate, and vigilantly pursue, the swift and thorough acquisition of additional information and documents for analysis. If you are tempted to think that requesting a particular type of data or documentation might be unnecessary, you are probably in error. When it comes to information in litigation, what you don’t know can hurt you, so gather all the information and evidence possible.

Your primary functions during this phase include:

1. Document collection: Ensure that you have identified and requested all potentially relevant material that can be pursued without formal written discovery, including material from your client and third parties and informal correspondence urging the opposition to produce specific categories of information.
2. List: Itemize additional information needed and materials that might exist and how to obtain them;
3. File review: know what is in the file and what is not in the file;
4. Chronology: Develop a written chronology of events.
5. Preliminary TOC: Formulate a preliminary  Theory of the Case  ;
6. Plan: Carefully map out discovery, disclosures and investigation steps, being specific with task creation in Daylite;
7. Social media: Internet research and social media checks on parties, witnesses, counsel and the court.
8. Budgeting: Prepare written budgets for your client and ensure that the client understands what the case will cost to litigate, in writing.
9. Indemnity tenders: Make and respond to all relevant or potential tenders of a claim for defense and indemnity based upon any potentially relevant contract language.
10. Early dispositive motions: Give early consideration to, and file as appropriate, motions for summary judgment or to dismiss, or to strike improper claims (such as premature punitive damage claims in Colorado cases). Consider jurisdictional motions, statutes of limitation, cases in which written notice was not given (such as warranty claims, FTCA and CGIA claims, and mandatory arbitration provisions in contracts).
11. Report: Prepare a highly detailed and well-written initial file analysis report for our clients and their insurers, with the tasks you listed in step 4, above, enumerated and explained;
12. File timely pleadings: Complaint, answer, counter-claims, cross-claims, third-party claims; designations of non-parties, etc.
13. Case scheduling: Schedule all deadlines and verify internally set due dates.
14. Disclose: File well-crafted Initial Disclosures.

Task entry in Daylite keeps you in control.

As mentioned above, deadlines and tasks must be entered in Daylite, with early internal completion deadlines to ensure timely follow-up of all tasks that must be completed before a deadline expires. The tasks must be linked to the deadline to aid in case planning. The more tasks you set at the beginning (assuming they are correctly entered in Daylite with proper follow-through by you), the more likely it is that you will retain control over the case. Attorneys lose control over cases when they fail to maintain the  initiator’s advantage , thus finding themselves being forced to react to the opponent’s tactics, often in haste, while losing opportunities. These lost opportunities include: the loss of credibility with courts, as when attorneys are seen as dilatory, evasive or just sloppy; the opportunity to be the first to contact witnesses; the ability to make intelligent choices based upon properly researched legal theories; the ability to warn clients in advance of foreseeable problems, and a host of other items. This troubling phenomena is typically caused by lax or undisciplined practices, which lead to missed deadlines and shortened or lost lead time . The key to preventing this “failure snowball effect” is good Stage 1 planning as manifest by the entry of well thought out steps in Daylite, coupled with timely execution of those tasks.

Stage 2:  Discovery, Investigation and Expert Selection

Core concepts:

Stage 2 begins soon after the steps discussed above are complete, and certainly no later than the commencement of written and oral discovery. It is essential to maintain momentum and control of the case by skillfully controlling the discovery process from the outset. You should be the first to submit written discovery and the first to request dates to set key depositions (in writing).

Your primary functions during this phase include:

1. Written discovery: Issue well designed and carefully planned written discovery, as well as responding to and supplementing your own responses to written discovery;
2. Depositions: The single most powerful tool in a case is often a well-taken deposition, which provides ammunition for use in motions, sets potentially indelible impressions in the mind of the attorneys and parties (and their insurers) regarding the value of a case, and makes the trial more effective by permitting more powerful opening statements and cross examinations.
3. Early discovery motions: Consider filing motions for protective orders regarding confidential material, motions for protective orders regarding privileged material (in some courts, such as certain Federal courts, a privilege log is not sufficient), motions to compel Initial Disclosures or written discovery.
4. Follow-up on disclosures: Prompt pursuit of incomplete disclosures and discovery responses from the opponent, using well-drafted correspondence and motions, as well as supplementation of your own earlier disclosures to include newly obtained information;
5. Follow-up on early written records requests and make new ones.
6. Preliminary consideration of expert topics: Carefully choosing, hiring (with prior authorization) and endorsing expert witnesses, as well as ensuring that they have adequate materials, testing and time to complete thorough analysis and reports;
7. Analysis of pretrial motions: Determination of Rule 702 motions and motions in limine while there remains time to perfect the basis of such  motions with oral and written discovery;
8. Inspections, visits and IMEs: Consider visiting scenes of accidents, corporate headquarters, and requesting medical examinations under Rule 35.
9. Experts: Select, recommend, obtain approval for, get budgets from, get materials for designation, and start experts working.
10. Research: Complete all legal and factual research needed with respect to all foreseeable legal issues;
11. Reporting: Draft comprehensive reports to inform the client (and insurer) regarding the timing and status of the case, covering all of the above subjects.

Send out carefully drafted written discovery at your earliest opportunity. Do not simply rely upon stock interrogatories and requests for production. Rather, think carefully about specific and important areas of inquiry and draft your questions carefully. Propound contention interrogatories and requests for admission with negative parallel interrogatories.

Begin setting depositions right away, even if you do not intend to take them right away, because there is a built-in delay between your request for dates and the setting of the deposition, which is followed by yet an additional delay before the deposition can be taken. The depositions you wish to take will often be delayed by scheduling concerns and problems. Some lawyers wait until they are ready to take a deposition—meaning that they have all the written materials they need and have decided how they want to conduct the deposition—before initiating the setting process by announcing an intention to take the deposition and seeking dates for the same in a defined future time frame. These lawyers often run out of time to take depositions and also commonly lose the opportunity to take the lead in questioning. They also lose the ability to control the sequence of depositions, which can have a great impact on the strength of one’s case. So do not wait: start the setting process as soon as reasonably possible.

When you send out requests for deposition dates, set a follow-up task to remind you to ensure that your request was answered timely. If not, issue the notice with correspondence relating to the failure of the opposition to cooperate in setting dates and your effort to secure compliance. Be willing (and potentially offer) to move depositions if opponent begins to cooperate.

Responding to written discovery.

Do not put yourself and your client at a disadvantage by failing to timely meet your discovery obligations (including properly detailed privilege logs).

Confirm written follow-up on all initial requests listed above (and any others you have initiated). Similarly, do not let the opponent get away with anything less than full compliance with his or her discovery obligations. Keep the pressure on the opponent and off yourself by thoroughly complying with your obligations and making sure your opponent does the same. Neither be rude nor easygoing, for both are marks of an amateur litigator.

Immediately upon receipt of written discovery, you must send the same to our client, along with a cover letter explaining what the client needs to do to assist you in responding. Never just send the questions without detailed instructions of what the client must provide, and when, along with freindly assurances that you will raise the proper objections. Provide clear, concise and specific information to the client regarding the need to fully respond and what is (and is not) privileged, and explain that anything that is withheld under a claim of privilege must be listed with specificity in a log, due at the same time as the responses, or the privilege will be waived. Explain that responding to questions regarding legal contentions and making objections are your job, and that you do not require the client’s assistance on those portions of the responses. Explain further that court rules specify that locating and producing data and documents will require diligent and thorough effort by the client, and that you will assist in the compilation of those materials, but that you are utterly reliant on the client to locate them and give them to you. Explain, in the friendliest terms possible, what can happen if required information is not produced on time, including the possibility of severe court sanctions such as fines, striking claims and default.

Never pander to a client’s desire to minimize the effort involved in responding to discovery (or the client’s disdain for the process or the opposition) by fostering an attitude that leads to less than full compliance with our legal obligations, for doing so is short-sighted in the extreme and nearly always leads to trouble. This is a common trap that has snared many unwary lawyers! Instead, use diplomacy and clear communication, with good rapport and a friendly tone, to help the client understand that working hard on this part of the case is in the client’s best interest. Offer as much help as the client wants to pay for. (In insurance defense cases, it is usually necessary to clear unusual time expenditures for this purpose with the adjuster with carefully written reports that do not risk angering the insured or creating dissention between the insurer and the insured; on contingency cases, this is part of the basis for our fee, but it is generally a good idea to push the client fairly hard to produce all available records.)

If it appears that you will need more than the time allotted by the rules, request your extension at the outset rather than at the last minute, and remember that stipulated extensions will often require court approval (which is the rule in federal court and under some state court’s local rules or standing orders).

Stage 3:  Expert Depositions & Preliminary Trial Preparation

Core concepts:

Waiting until discovery is complete before commencing trial preparation is, to be blunt, idiotic and self-destructive, but most lawyers make this mistake. Be the one lawyer in the case that does not make this mistake, and this phenomena can operate to your great advantage. Trial preparation is far less stressful when it is commenced before discovery is complete, for nothing need be rushed, the quality of pretrial reports will skyrocket and you will have preserved for its intended use the time for final trial-related motions (such as motions in limine, motions to strike) and trial briefs.

This stage should commence no later than 180 days before trial, and sooner if possible. In point of fact, you could theoretically commence State 3 much earlier—even as early as the commencement of Stage 2, but this Procedure is written as it is to allow for a more orderly development and to eliminate the confusion of tracking too many pending sub-projects simultaneously. You will find that as your knowledge of this Procedure, as well as your skill with GTD and Daylite improves, it will become quite easy for you to work on Stage 2 and Stage 3 simultaneously.

Your functions during this Stage include:

1. Endorsing experts: (depending upon the deadline) Be thorough in reports and endorsements!
2. Deposing experts: Pave the way for effective neutralization through cross examination and pretrial motions (including Rule 702 motions).
3. Develop order of proof for trial: Considering which exhibits and testimony to offer, in what order, and prepare for all evidentiary objections including foundation and authenticity, hearsay and other objections.
4. Complete remaining fact witness depositions: By preparing your order of proof for trial, it should be easier to spot any remaining depositions that must be taken.
5. Complete trial preservation (video) depositions: Most courts require that these be completed prior to the discovery cutoff. Be sure to consider any witness who may not be physically available for trial due to schedule conflicts, distant residency, illness or other reasons.
6. Update disclosures: Be sure your trial evidence is covered in your disclosures, written discovery responses and supplements to these.
7. Focus groups and mock juries: As needed, consider using these tools.
8. Written settlement offer update: Check to see that a written settlement offer was made.
9. Final discovery motion check: Re-evaluate sufficiency of opposing parties’ disclosures and discovery responses.

Stage 4: Final Trial Preparation & Trial

Core Concepts:

Stage 4 begins on the date of the discovery cutoff (for experts or all discovery, whichever occurs latest), and carries forward the trial preparation that was commenced and largely completed during Stage 3.

Your primary functions during this phase of the case include:

1. Witnesses must be aware of their trial testimony time and details, under subpoena and thoroughly prepared to testify.
2. Exhibits must be properly marked, disclosed and listed with plan and backup plan for admission into evidence, including models if useful.
3. Motions such as motions in limine, Rule 702 motions, and trial briefs, as well as briefs in support of (or opposition to) objections to witnesses, exhibits or jury instructions or designated deposition and video testimony must be filed (note that this step requires element-by-element analysis of all claims and defenses as well as planning for “half time” and “close of trial” motions that may depend upon specific legal authority you will want in the record).
4. Jury instructions and verdict forms must be finalized (as well as objections to the opponent’s instructions and verdict forms).
5. Depositions must be reviewed for cross examination or reading into record at trial, with appropriate designations on file and all required video editing complete.
6. Opening statements must be planned.
7. Voir dire must be planned.
8. Focus groups of mock juries should be considered and used as appropriate and approved
9. Drafting and filing jury instructions and objections to instructions, the latter portion of which requires coordination of the trial brief with any briefs filed in support of objections to the opposition’s proposed instructions.
10. Designing alternative verdict forms, which is the natural conclusion of the preparation of jury instructions.
11. Completing mock jury or focus group sessions as appropriate in order to fine-tune your trial presentation.
12. Testing and practicing with audiovisual equipment to make sure it works and that you know how to work it so smoothly that your operation of the technology during trial will not distract the jury or slow your presentation.

Stage 5: Trial & Post-Trial

Core Concepts:

Stage 5 combines the trial and post-trial phase of the case, including everything that occurs from the first moment of the trial to the entry of a final judgment pursuant to Rule 54, including all post-trial motions filed with the trial court (other than a Notice of Appeal).

Your primary functions during this phase of the case include:

1. Skillful completion of the trial.
2. Report concurrently during the trial to any remote client or insurer not present in the courtroom.
3. Ensure that judgment is entered correctly in the register of actions if you prevail at trial.
4. Filing a bill of costs and statement of attorneys fees as appropriate;
5. Filing post-trial motions, including but not limited to: (a) motion for judgment notwithstanding the verdict; (b) motion for judgment as a matter of law; and (c) motion for new trial.

Case Planning Meeting Procedure

Case planning should be done systematically. Each case should be the subject of the following process at least every four weeks; more frequent planning is desirable. When a complex case becomes particularly active, it may be necessary to revisit the issues itemized below every few days.

Case planning meetings and case planning sessions should be calendared or set as tasks with reminders, or both.

Required Preparation

As we emphasize so frequently, if you don’t have specific information in your mind, you cannot process it or think with it. It is therefore useless. For this reason, the key information about a pending case must reside in the mind of the PRA in addition to being stored in Daylite and on our server.

Before participating in a case management meeting (CPM) with a supervisor or engaging in solo case planning, be very sure you have the following information firmly in mind, and that you can recite the same on demand without the slightest error or uncertainty:

Do you know what you are doing?

If you appear for a case planning meeting without the above information firmly in your mind, you should be sent back to re-study this bulletin and tested on it thoroughly. You should also be sent back to re-study the case file, and tested on your knowledge of it.

These steps are not designed to inflict punishment or humiliation, but are designed to ensure that we continue to meet our own standards. If you don’t know these basic facts about your case, you can’t possibly perform adequate case planning, for you don’t have enough information in your mind to actively think and plan as you don’t know even the basic parameters of your file well enough to put your brain to task on the specific matter.

Sequence of Steps

The purpose of a case planning session is the intelligent and inspired creation of useful tasks to be completed, which are correctly entered into Daylite with appropriate internal due dates, including an assessment of progress that has been achieved to date.

A formal case planning session should be performed with Daylite open and on a communally viewed monitor, referring as needed to the electronic case file.

Deadlines: Internal & External

Lawyers who fail to understand and faithfully apply the Firm’s workflow management practices and Optimum Caseload Policy tend to produce low quality products at the last minute, or even skip essential steps entirely. This is because they rob themselves of the time needed to do a careful and thoughtful job, and they rob themselves of the time needed to detect and correct mistakes.

Last-minute rushes produce substandard results.

It is for this reason that an attorney must understand the difference between an external and an internal deadline, setting (and meeting) internal deadlines early enough to leave a wide margin for error. Planning for the worst while producing your best requires that you avoid last-minute rushing to meet a deadline—and that you do this with the same fervor you would in order to avoid a life threatening disease.

Don’t kid yourself into thinking that you “work best under pressure.” This belief is a common form of self-delusion used by disorganized, undisciplined workers to justify poor work habits that wreak havoc in a litigation firm. If you must have a metaphorical gun to your head for you to do your work, you are not the kind of professional who will fit well here.

Remember: if you conscientiously and effectively adhere to the practices explained here, keeping on top of your caseload through the use of good workflow management (GTD and Daylite), with frequent, thoughtful and thorough case planning, you are very likely to rapidly rise to the top of this profession. You will find it well worth the effort in the long run, and you will have a lot more fun along the way!

Interactive Task Capture

Verbal assignments forgotten and omitted.

A common and dangerous source of difficulty arises from the failure of lawyers to capture (add to Daylite) tasks that are thought up during informal case discussions or which are assigned outside of formal case planning sessions. Tasks that are assigned “on the fly” during breaks in depositions, at hearings, during car rides, at lunch or over a drink at the end of the day are common examples of lost assignments. The supervisor may think that the PRA is listening and will follow up on the task verbally assigned, but the task does not get done, either because the PRA doesn’t make notes or fails to review his or her notes for tasks that need to be added to Daylite. When a task is not set in Daylite (which is the responsibility of the PRA and not the supervisor) it rarely gets done in a timely manner, if at all.

For years we noted that younger associates often appeared daunted by this standard; eventually we realized that the problem was not that younger lawyers were confused by the idea that they are responsible, but only by the mechanics of capturing and tracking all that they are expected to do. All lawyers, particularly busy ones, need to be guided firmly into a routine that prevents them from missing the actions they need to perform when they are given assignments or directives.

The Daylite and GTD systems are designed to help the PRA do this, but if the PRA forgets the assignment before getting it into the system, the benefit of making the assignment is lost, the benefit of having the system is lost, and the PRA’s future becomes uncertain.

“Dropped balls” and damaged careers.

We have all heard the saying, “the devil is in the details,” and “for the want of a nail a war was lost.” These sayings refer to the notion that, in battle (litigation), small details often decide the outcome. Your ability to take responsibility for and track, a large number of details is one of the two or three primary factors that will determine the trajectory of your career. A surprising number of lawyers are very poor at task management, which is a fact that you can play to your advantage. All you must do is ensure that all tasks are registered in Daylite, that you regularly maintain and update your takslist and worklist, and that you finish your tasks well and on time.

iPhones and notepads.

A technological tool of great value in the process of capturing tasks is the iPhone with Siri configured to synchronize Reminders to Daylite, provides an easy and convenient way of preventing task assignments from being forgotten. A less sophisticated tool and less efficient tool is a written note.

Another is the use of written notes, but one must be disciplined in processing those notes through the good GTD practices.

Special Problem: “Ducking” Orders And Tasks.

We have on occasion encountered staff members who are deliberately unreliable. In these employees, we encountered a practice we call “ducking,” which is failing to unequivocally acknowledge an assignment and responding instead in a manner designed to achieve plausible deniability, or somehow leave the impression that an assignment has not really registered as a specific order that must be carried out competently and professionally. An attorney who uses this destructive tactic often later responds with feigned innocence, once it becomes clear that the task did not get done in a timely manner, saying something like, “Oh, you really wanted me to do that? I wasn’t sure we had finalized that idea.”

It is important for all employees in this Firm to understand that our corporate culture has evolved to swiftly and effectively eradicate such conduct through: (a) directly confronting unreliable behavior patterns without regard to hurt feelings; and (b) if directly confronting traits of unreliability fails to remedy the problem, to replace the employee with someone who is both responsive and reliable.

Here is an example:

If you are a supervisor, you will find this practice of dodging or ducking a verbal assignment with an equivocal acknowledgement to be both easily spotted and worrisome. If you observe this trait in a member of your team, you should confront it immediately, directly and decisively, for it may be a sign that we can’t rely on a lawyer to accept, track and complete verbally assigned tasks, which makes such a lawyer completely useless to the Firm.

Similarly, an attorney who utilizes evasive acknowledgements; to create the illusion of plausible deniability (acting as though he or she didn’t quite hear or catch the assignment or order) should expect negative feedback or worse. An attorney who adopts an attitude of being insulted or upset because of a supervisor’s direct confrontation of this practice is in danger of suddenly escalating a bad situation into one that is terminal, because smooth and reliable verbal assignment of tasks is instrumental to efficiently supervised case management.

To erase the bad taste that may have been created by the discussion above, let us observe a much more pleasing cycle of communication:

Conclusion

Congratulations on completing a successful reading of one of our most essential Procedures!

This Policy has given you a virtual goldmine of information with which you can now become a truly skilled litigator—particularly if you couple this information with what is contained in our Practice Guides and other Procedures. Because there is so much information here, we require that you constantly refresh yourself on the contents of this Procedure by re-reading it frequently. A Firm mantra we often recite is: the more times you go through material, the more certain you are about what it contains.

END OF DOCUMENT

© Brett Godfrey 2020. All rights reserved. No portion of this material may be duplicated, disseminated or reproduced without express written permission from the author.