The Optimum Caseload
How we measure and allocate work among lawyers and support staff.
You Are Important, So Is Your Career
Rule 1.3(2) of the Model Code of Professional Conduct makes this Policy essential:
A lawyer’s work load must be controlled so that each matter can be handled competently.
You are a very disciplined person, and very well organized. You approach your caseload with the same degree of professionalism that a world-class surgeon would bring to a medical procedure. This must be true; otherwise you would not be reading these words—because you would not be working here. You take very seriously your responsibility to learn and abide by the specific operational practices of your Firm, just as you are very eager to maximize your career and your income by taking full advantage of the tools we provide for this purpose. (If there is a cynical voice in your head that mocks these ideas, silence that voice with pure willpower so that it won’t hold you back, for your success is attainable, and is nothing to mock, doubt or laugh about.)
We have discovered a way to optimize the productivity of our lawyers and staff without burning them out, or pushing them to the point of making costly and avoidable mistakes. We have discovered many of the keys to a rewarding and successful practice. We have also solved core problems related to staffing decisions. These discoveries have led to the design of a system that we use to distribute, track and monitor workload.
The tremendous benefits of this system can be enjoyed with relative ease, but only if the our system is consistently and uniformly followed by all who work here. In order to be correctly applied, our methodology must be fully understood. It serves as the basis of all of our work-load management and planning; it defines how we communicate and track our tasks and deadlines. At first, it will require some honest effort to learn, but in a very short time, it will become second nature for you. Once you’ve gotten accustomed to the use of these tools, you’ll wonder how you ever got by without the tools you learn here. A bold claim? Yes, but a true one nonetheless.
When our system is not followed as it was designed, trouble follows—first for the person who departs from the system and then for the rest of us. Therefore it is vitally important for you to carefully study, understand, remember and follow these policies and procedures that define how our system operates. This is a baseline minimum job requirement.
Before you study our Procedures relating to workload management, you must understand the conceptual foundation of the procedures, which are contained in this and a handful of other Firm Policies.
This Policy defines what we refer to as the “Optimum Caseload,” which we sometimes also refer to as the “Ideal Caseload.” It is our core operational policy in relation to Firm production and quality control.
The Importance Of Measuring Your Caseload Against An Ideal
Some lawyers, when first exposed to this Procedure comment, “My caseload is what it is. What good does it do to spend valuable time measuring it when I should just be handling it by doing the legal work?” This is a very good question, but it arises out of an inherently flawed assumption: that your caseload “is what it is,” and can’t be changed. We are, as a firm, engaged in managing group ethics and group productivity, which is one of the key distinctions between a collection of individual practitioners and a true firm. To manage our firm, we re-allocate work from one lawyer to another as needed in order to avoid the problems associated with lawyers having improper caseloads.
It is important for each lawyer to have the correct amount of work. A lawyer with not enough to do is a financial drain on the Firm, particularly if he or she does not regularly bring in business. A lawyer with too much to do can also be a liability, for he or she is prone to making mistakes and missing important tasks. A lawyer with an optimum caseload is both productive and profitable, devoting the correct amount of time and energy to tasks so that they are done well, on budget and on time. For this reason, it is essential to measure an attorney’s workload in comparison with what, for that attorney, would be an ideal or optimum caseload—as defined below.
Measuring a caseload is part of managing a caseload. Our required workflow methods provide the foundation by which caseloads are both measured and managed. It is impossible to correctly measure one’s caseload without using the tools which are detailed in our Procedures. This is why you must be intimately familiar with all details of our Case Planning Procedures before you can properly measure your caseload.
Replacing Cloudy Impressions With Objective Measurements
Ask yourself (or any other lawyer you know) this question: “How heavy is your caseload in relation to what would be ideal for you?” When asked this question, the vast majority of lawyers are unable to provide an accurate and objective reply. As remarkable as it may sound, this is because: (1) they have no way of really measuring their caseload; and (2) they don’t know what is ideal for them.
Common misconception: Attorneys often incorrectly assume that they can picture a theoretical ideal caseload and that caseload fluctuates from day to day in relation to that ideal. We sometimes hear from these attorneys, “I’m way over optimum right now but by Thursday I should be below optimum.” Their caseload will drop significantly in two days? No. Their calendar and immediately-due tasks may clear up a few days, once they meet or miss several short-term deadlines, but their overall caseload may not have been reduced. On this basis, the following rule becomes clear:
Relying only upon a general impression of how busy or stressed one feels in order to measure and allocate workoad is like using a mood ring instead of a compass to know which way is North. Would you measure the weight of a load of bricks by judging whether you think they are pretty? Of course not! You would use a scale, and before reading the dial, you would make sure that all of the bricks were on that scale.
Similarly, judging the weight of a lawyer’s caseload based upon that lawyer’s stress level, how tightly packed their appointment calendar is this week, or whether he or she is falling behind on key deadlines is not a measurement of the lawyer’s actual caseload. These things are just as likely to be symptoms of poor task management and inefficient scheduling than a caseload that is too heavy. If a lawyer knows that he or she is failing to meet deadlines, such lawyers will tell you that they a heavy caseload, even if they do not. If they are not aware of being behind (which occurs when they have not systematically developed and maintained their task list), they will tell you that they could take on more work, when in fact their caseload may be too heavy. The sad and rather alarming truth is that most lawyers use illogical and misleading indicators to gauge their caseload.
If this is true, then why have so many lawyers failed to correct such an obvious problem? The answer is found in the fact that most lawyers do not approach their careers with the correct attitudes—attitudes which will assist them in avoiding common pitfalls and mistakes that prevent them from being truly successful. Incorrect attitudes lead to incorrect methodologies. Incorrect attitudes result from and in incorrect and inadequate training. For many people, there are three particular barriers which must be overcome in order to learn and use an effective case management system. Once you identify and rid yourself of two attitudes in particular, you will able to apply tools that will help your career soar. Before we delve into those barriers and how to surpass them, let us first define the only objective method that exists to truly measure your caseload.
The Only Correct Way To Evaluate Your Caseload
Rather than counting numbers of files, or attempting to mentally glance over your files for a quick overall impression, it is necessary to actually know, in detail, what your workload adds up to when all the tasks that are required in each of your cases have been identified, scheduled and combined into your master task list. You may then examine that master task list—which must include internal due dates that are intelligently set—to determine whether you can realistically handle the tasks that are due in the next 2 to 4 months without missing any of of the steps your cases require. Later in this document we will cover how to compare how busy you should be against how busy you actually will be (which is the same as comparing your actual caseload to an ideal caseload), but first now we must refine your understanding of the procedure to detail and inventory the detailed data you will need to make that comparison.
Until you have completed the task input and tracking that is needed for each one of your cases on the basis of our thoroughly defined case planning methodology, you have no objective basis to evaluate your overall workload.
Without maintaining complete and up-to-date case-specific task lists that are thoroughly and systematically developed, you really have no way to determine what your “merged,” or aggregated task list (that would be the product of combining all of your case-specific task lists and all of the other firm-related administrative tasks you may have taken on) would look like, or how hard you would have to work to keep up with that list. Guessing based upon a general impression of the overall caseload, even if you spend a few minutes contemplating your general impression of each case, is useless and leads to completely inaccurate results.
The typical outcome of the guesswork related to relying upon general impressions, rather than upon an objectively complied aggregate task list, is that most lawyers tend to underestimate the amount of work they have before them; they overlook large segments of the work they must complete in a given time frame. Without the benefit of the detailed case planning methodology we require, the lawyer tends to skip many important steps on a chronic basis, which of course turns the big caseload into a small one at the expense of the quality of one’s legal work. A lawyer’s stress goes up as cases unfold and he or she realizes how many steps have been missed, while the lawyer’s performance plummets. This unfortunate outcome is the combined result of failing to properly plan each case and the resulting inaccurate assessment of the lawyer’s overall workload. We refer to this phenomena as the result of violating the principles of the ideal caseload.
From this you can see that case planning and caseload evaluation are two key parts of caseload management, and why they overlap the way they do as shown in the diagram above. The central component of both case planning and caseload evaluation is systematic task input and tracking, using the Firm’s case planning method together with the GTD workload management system.
Our Workload Distribution Policy
You have now seen that measurement of a caseload is a completely different function than expressing how busy or stressed you may feel at a given moment. You now know, using this material and the Firm’s Case Planning methods, how to measure and report the overall volume of your work as a whole—your caseload—so that we can intelligently distribute assignments and cases and make the best use of our human resources.
The next step is to understand and correctly apply the Caseload Benefit Graph and its related concepts in order to inform the Firm whether your caseload is optimum, or “ideal” for you. An optimal workload for one attorney may be too much or too little for another, and there is no value in proving that your optimum capacity is higher than the next person’s. Assuming that each attorney possesses a baseline minimum skill set, what matters is that each attorney’s workload is optimal for him or her, based upon the specific parameters detailed below.
Two Opposing Philosophies Leading To Imbalanced Caseloads
When it comes to the decisions a firm makes with respect to the hiring of new staff and the allocation of work, most firms adhere to one or the other of two opposing viewpoints. For the sake of discussion, we refer to these as the “bury everybody” approach and the “optimum caseload” approach. In our firm, we employ the latter of these, striving to maintain, as closely as possible, an ideal or optimum caseload on the desk of each attorney and support staff member. Of course, this is an aspiration, there is a great deal of understanding and judgment, foresight and procedural knowledge that each staff member must apply to help the Firm meet this goal on an ongoing basis.
The “bury everybody” approach.
In most firms, the primary goal is to ensure that there are no idle hands. Because every person drawing pay represents a load on the financial resources of a firm, there is a general reluctance to hiring more lawyers and staff than are absolutely necessary. To serve this end, firms often operate on the principle that no more attorneys or staff should be hired than are absolutely necessary in light of the firm’s caseload. The goal in such firms is to keep each attorney as busy as possible, in order to reduce the likelihood that the firm will be forced to fire people if there is a dip in workload. On the surface, this may seem like a good idea. In firms that follow this approach, the underlying value judgment is that the firm at its existing size is more stable if everyone’s caseload is “packed,” which creates the sense that business is booming and all is well. The senior partners in such firms tend to think the stress level of this caseload forces attorneys to continually operate in a “maximum billing mode” at all times, while yet remaining “efficient.”
The primary flaw of this approach: In reality, what such firms are actually doing is implementing a policy whereby the short-term risk of reduced job security for any given person has a higher priority than the quality of the firm’s work, its long-term growth, or any one person’s sanity or professional development. This short-term, fear-motivated thinking tends to stifle, rather than promote, growth and advancement for individuals as well as the firm as a whole. The “bury everybody” approach not only penalizes the individual attorneys in the firm by reducing the quality of the work environment; the attorneys who work the hardest are punished by ever increasing workloads. Despite the assumptions mentioned above, the added stress experienced by all produces little or no additional income because attorneys with lighter caseloads are already billing all they can and still not getting everything done in their cases, so this approach jeopardizes clients’ interests for no real economic gain to the firm. In the long run, the likelihood of losing business with this approach is actually increased, because the overall quantity and quality of the firm’s output—not to mention its marketing activity—is materially reduced from what it could be. For these reasons, the “bury everybody” approach is usually counter-productive, especially in an hourly billing context.
The Caseload Benefit Graph
As stated several times thus far, in order to rationally apportion work in a firm, it is necessary to discover the amount of work that is optimum for each attorney. This determination of what is ideal is based upon an understanding of the direct relationship between the amount of work on any particular lawyer’s desk and the resulting benefit to the firm. Understanding the definition of “benefit” is key to this analysis.
The graph at left shows the “benefit” to a firm as a function of increasing individual caseload. At the left end of the graph, where caseload and benefit start at zero, there is a direct and obvious benefit that comes with increasing the caseload from zero. With each new matter, an attorney’s ability to make productive use of his or her available capacity to perform work (or available work hours) is commensurately increased.
Limiting factor: maximum sustainable output. There are only so many hours a person can work in a day over a sustained duration of time. For most hard-working lawyers, that figure falls between 40 and 60 hours per week. Lawyers who typically put in less than 40 hours per week are not considered to be serious full-time professionals, and while they may bring value to a firm as a part-time or fill-in professional resource, and remain subject to the caseload benefit analysis, they tend to create a special mathematical proposition for a firm which is typically adjusted by reducing that lawyer’s pay or recognizing that such a lawyer makes up for diminished output through successful generation of business. A great rainmaker can get away with putting in less that a full litigator’s week.
Beyond a certain point on the graph, the added benefit of yet more work begins to taper off. Moving from left to right, as we approach the point labeled “1” on the graph, the attorney has enough work to bill as much time as he or she is willing, without cutting corners or skipping steps in the misused name of “efficiency.”
This corner-cutting idea of “efficiency” often leads to the dreaded “we really didn’t need that” excuse.
The mere fact that a lawyer can “get by” with too many cases does not make this an optimum solution, even though it presents the promise of being able to stay busy and billing even if the caseload drops. Sophisticated clients generally see through this, and realize when corners are being cut. Flat-fee clients, or those who want only to make the litigation process as cheap as possible without regard to results, may like the “bury everybody” approach, but there are major ethical problems associated with any fee arrangement that presents the lawyer with a financial disincentive to perform the best legal work possible and rewarding the skipping of necessary steps. Simply put: cutting comers as a long-term business philosophy will not make you or this firm stand out in a positive manner.
Definition of “Benefit”
To shed more light on our analysis, consider this question: What constitutes “benefit” as the term is used on the graph? In order to formulate the definition of “benefit,” we must consider our purpose as a firm. Why are we here, doing what we do?
The purpose of this firm. This law firm is a business with one primary objective: to earn money by providing quality legal services to each and every client. Of course, there are secondary purposes that are also worth mentioning. These include professional satisfaction and development, serving society and helping others. Our Firm Charter defines our central organizational purpose.
“Benefit” as used here is defined as the generation of profit by providing high quality legal services, and the development and improvement of the individual and group ability to do so.
In an hourly billing context (assuming no difficulties with collecting fees are present), the term “benefit” includes two obvious factors, among a number of others:
- the quality of work performed, and
- the number of hours billed.
A caseload is merely a collection of opportunities to perform and bill for hours of high-quality legal services. The quality of the work will decline after passing point 2 on the Caseload Benefit Graph, and for the sake of this policy it is expected that, provided the attorney is near or below point 1, the quality of work will automatically be the attorney’s best. Short of that point, what increases with increase in caseload is the amount of hourly billing the attorney can ethically generate in a given time period.
The Finite Limit That Must Not Be Overlooked
How many hours are you willing to bill each week? (Consider your professional and financial goals, the minimum requirements of the firm, and your family or social life before answering.) Once you know your practical maximum billing potential, then we have a fixed parameter within which to achieve the optimum benefit. Any solution that fails to take this limit into account is not based upon reality.
Of course, nothing in this Technical Documentshould be interpreted as encouraging the notion that there is something good about working less than you should or being unproductive. On the contrary, the financial incentives this firm has implemented are designed to stimulate and reward a higher output from each attorney. We are simply acknowledging the reality that every lawyer has a maximum work limit. For some very capable and dedicated lawyers, this figure may occasionally exceed 100 hours per week.
Personal ambition and dedication to your carreer, health, stamina, family and personal affairs obviously play a role in the determination of your capacity for work; the top professionals find effective ways of optimizing those aspects of life to foster professional development and carreer advancement. We have watched with sorrow as some have floundered as their personal problems or lack of discipline overcome their dreams and goals. While the handling this subject is a major issue for novice and veteran lawyers alike, a full discussion of it is beyond the scope of this Technical Document. The policies and procedures of the firm, particularly the GTD System, are of incalculable value in helping professionals remain productive with a minimum of stress.
Each file carries with it the opportunity and obligation to perform a certain amount of work in order to do a good job.This is the amount of work which must be completed to handle a legal matter properly and effectively without wasting resources. Do less, and the client may suffer from skipped steps or half-measures; do more, and the client may suffer from being billed for unnecessary effort.
In view of all that is covered above, this question becomes clearly central to the determination of the optimum caseload: Once you have enough cases to ethically reach the number of billable hours you are willing to work, will handling even more cases really cause you to bill more time, or will you start skipping steps and compressing your efforts just to keep out of trouble, losing in the process any ability to market, assist the firm in administrative matters and your ability to tap more deeply your creative potential as a lawyer? Decades of experience has taught us that the latter rather than the former is the likely outcome.
Eventually, one’s caseload can be increased to a point where the attorney is living on the edge of disaster. This is point “2” on the graph. At this point, the attorney is barely able to avoid malpractice. The attorney operating in this region of the chart will always be fighting to resolve some current crisis. Such lawyers are easy to defeat in litigation, having fallen into a purely reactive mode because he or she is simply too busy to be proactive. He or she is too busy putting out fires to formulate and launch fresh attacks on the opposition. The risk of missing a key deadline or an essential step is present in large degree above point 2 on the graph. The attorney becomes unable to give real thought to an ongoing matter, because there is no time to do so.
The reason the curve drops precipitously beyond point 2 is that the attorney in this region begins to make mistakes that cost more time and effort and this creates a “domino effect” or dwindling spiral, sending the attorney in the direction of a complete meltdown. The lawyer’s clients are sure to suffer if the lawyer operates past point “2” on the graph.
Lawyers with too little to do are often living in dread of being tagged as “dead wood” by the firm. That fear pushes them to horde work, which as we have seen is good but only to a point (point 1, in fact). Lawyers who are too busy are not as good at communicating regularly with clients; they do not develop brilliant strategies; they do not file optional (but sometimes outcome-determining) motions; they fail to take necessary depositions; they are reluctant to deep legal research; they miss key points or bits of evidence; they forget to hire necessary experts; they tend to forget deadlines or leave too little time to prepare essential documents; they sound and appear rushed and worn out and therefore lose client confidence; the quality of their writing suffers; they become depressed and they get on the nerves of their co-workers, causing a spreading morale problem in the firm. This can lead to a snowball effect which, in turn, can cause the lawyer’s ethical standards to drop with the application of “situational ethics,” or dishonest reporting, and a host of other problems. Drug abuse and financial irregularities often follow, neither of which are permitted in this firm.
The Ideal Caseload
Between points” 1″ and “2” on the graph, we have an area of flexibility. This is the area which makes practicing law livable, and even fun. At point 1, intermittent and unexpected fluctuations in caseload are not likely to have a particularly large effect on the attorney in terms of billable hours or quality of work. Considering these principles, it becomes obvious that the goal is to have a caseload between points” 1 “and “2.”
Within this range, we can fine-tune our thinking even further. Experience also shows that in private practice, there are activities that are essential for firm growth and individual professional development other than just work quality and cash flow. These extra factors include continuing education and marketing, both of which also increase the likelihood that new business will continue flowing into the firm. If the attorney leaves time for – and seriously spends that time – engaging in professional development such as continuing legal education and self-study, along with with effective marketing, then we see that the best place for the attorney to be on the graph is just above point “1. “ In this firm, we define that point as the “optimum caseload” or “ideal caseload.” it is defined as follows:
Might this approach, increase the short-term risk that a reduction in force may be necessary? The answer is “yes,” but the return is actually greater long-term growth and significantly increased long-term job security for those who are able to function well as attorneys in light of the considerations covered above.
Sources of Resistance
The application of this doctrine may require a period of adjustment for those who have worked under the “bury everybody” approach, or who have simply allowed themselves to be buried for too long. It is common for a lawyer who has been chronically overworked but who has recently achieved an optimum caseload to flinch at the idea of doing more with a file than he or she is used to doing, often because the person simply is not well trained on the finer points of litigation planning and tactics, and has not ordinarily dug more deeply into the various strategies and tactics that should be applied to gain as many advantages as possible on the client’s behalf.
A lawyer whose practice consists of nothing more than reacting to the shots fired by the opposition quickly forgets (or never learned) sophisticated tactics that are often overlooked but which may win the case if used properly. A mastery of advanced litigation tactics requires more than frantically bouncing around like a puppet on a string. It is natural to flinch at the idea of being expected to: perform at a higher level; know more about your file and the law governing your case; regularly generate brilliant tactics and beautiful status reports; operative causatively rather than reactively; and regularly obtain superior results.
Being too busy is a great excuse that can protect one from the frightening implications of higher expections. This is the second reason that the “bury everybody” approach holds false allure. An attorney who can confront the vacuum of incomplete legal or tactical knowledge without the excuse of being too busy must be capable of candid self-assessment, self-directed action and improvement.
The optimum caseload requires a lawyer to be truly efficient with time in a totally different way than the “bury everybody” approach. This difference flows from the definition of efficiency. To find the hidden master stroke which will win a case is one thing; to do so in a manner which the client is willing to pay for is quite another thing. More specifically, this comparison brings out the difference between incorrectlydefining “efficiency” as the skipping of steps with the justification of being too busy, and correctly defining “efficiency” as in the dictionary:
Efficient. being well organized; performing tasks in an organized and capable way.
Efficiency. Competence. The ability to do something well or achieve a desired result without wasted energy or effort.
Consider this question: What will likely happen if you maximize the quality of your work and marketing while working with an optimum caseload, capturing all of your billable time, generating your best results and keeping your clients informed in advance of key developments?
It is likely to be that you will attract more work. You might find that word spreads about your skill as an attorney, while your marketing efforts begin to pay off. You might find that you bring in more work than you can do by yourself (without going beyond the optimum caseload). This is a good thing! If it happens, you are contributing to the job security of others as well as yourself, and will find your income going up in light of the firm’s policies regarding marketing bonuses and the firm’s tendency to reward rainmakers.
How To Measure Your Caseload
Are we cutting things too finely with this analysis? Perhaps so. After all, in the real world of law practice, it is not always possible to minutely regulate the work to be done. Spikes and dips are unavoidable to some degree, but this does not denigrate the effectiveness of the principles described above. An airplane heading from Denver towards Boston may not travel in a ruler-straight line to the destination, but it sure helps if the pilots know that Boston is the destination, so they can make proper course corrections and heading adjustments when necessary. Similarly, this Policy Memo is designed to give you the ideal goal, or destination, so that you can help us make the correct adjustments to your caseload.
There is no set number of cases that can be set in stone to meet our definition of an ideal caseload for every lawyer. On the contrary, the firm depends upon each individual attorney to know and regularlyinform us, based upon your intimate knowledge of the cases you are handling, the load that will meet the definitions set out above. For a particular lawyer, the ideal case load may be six very large cases, or ten times that many smaller files.
Put simply, you tell us where you are on the graph.
What may be ideal for one attorney may be too much or too little for another, as individual abilities and efficiencies vary somewhat, keeping in mind that there are minimum acceptable levels of efficiency and ability for each salary level, which are determined on a subjective basis by clients, the firm, and your colleagues every day. After all, most clients make decisions as to which lawyer or firm to hire on a highly subjective basis, using capricious and sometimes frustrating criteria, which we have no choice but to recognize if we wish to flourish and prosper as an organization.
We ask you to consider these principles very carefully, and ask questions if necessary, so that you can tell us at any given time whether your case load is above, at, or below the optimum caseload. With your feedback, we will do our best to make staffing decisions and case assignments to maximize the likelihood that everyone will spend as much time as possible operating with an ideal caseload.
Three Barrier Attitudes
Human beings are able to create and control the reality in which they live to a much greater degree than most people realize. We all have quirks, personal likes and dislikes and impulses to act in ways that may not always make sense. Some of these traits lead to greatness, while others just cause us difficulty. Our goal in pointing out this phenomena is not to send you on a deep philosophical journey of self-enlightenment (though doing so would not be a bad thing), but merely to open a door in your thought process to recognizing and overcoming built-in limitations that are often found to be a source of trouble. Many large corporations, the military and a great number of management gurus preach the importance of these ideas: they are well recognized and accepted as keys to performance improvement in professional groups. We therefore ask you to make an honest and candid effort to explore whether either of the following two attitudes could slow your progress as a member of a tightly integrated group of high-performance litigators:
1. Fear or dislike of organizational systems: The reason most lawyers have no idea how busy they would be if they were completely in control of their cases is that they lack a fully developed organized methodology to manage their cases, which is, in turn, the result of an illogical but very common innate fear of being organized, which, in turn, is usually caused by the misconception that being disciplined in the management of one’s workflow requires extra work to achieve the same results that could be achieved without this extra effort. Lawyers who operate on this basis tell themselves that they can recognize the need for various tasks as quickly as they can get them done. While this notion may seem reasonable on its face, actual practice proves it to be drastically incorrect.
Some people have a deep-seated feeling that organizational methodologies are restrictive and constricting. They think that requiring people to adhere to carefully designed systems is a way of controlling them, and that being controlled is inherently bad. These ideas are a manifestation of a mild form of insanity, coming as they do from a hidden wellspring of disbelief in one’s ability to function well as a part of an organized group. Some people have a buttonButton: a reactive response that results automatically in illogical, unwanted behavior; something that triggers an unjustified negative emotional response. on the subject of being told what to do. Others have a button on the subject of telling others what to do.The entire subject of control is contaminated by emotionally charged and deeply held reactive behavioral patternsReactive behavioral patterns: responses that are driven by stimulus-response subconscious associations that take the place of cold logic and analytical thinking. that does not withstand logical scrutiny in the cold light of day.
The idea of a rigid, mechanical checklist approach to work feels more robotic than creative, and at first the notion of following what appears on the surface to be a complex ritual of some kind seems daunting. The key words here are appears and seems. If you momentarily disengage your inner critic and think logically as possible, the distaste (or even panic) that can be triggered by what some like to call “anal retentiveness” (a put-down to justify mediocrity and amateurism) can be extinguished with relative ease. The following thought experiment will make this very simple: If you had to cross a thousand-mile stretch of desert, would you set out in your flip-flops without preparation, with no map, no water and no food? If you did, you would surely die. But what if you systematically employed the benefit of tools, technology and skills that only the most organized, professional and advanced specialists have developed? You could climb into a jet and have the journey behind you in a couple of hours! This is the luxury of using advanced professional tools. Flying a jet requires a professional attitude and vigilant adherence to carefully developed rules and procedures. Building a jet requires fantastic organizational systems and teams of very smart people who have amassed great knowledge. Both require devotion to being organized and careful attention to detail—just as does the field of litigation.
We all know that flexibility and creativity are important traits for a litigator. As you will learn, these are traits that depend upon—rather than replace—discipline and organization. Flexibility and creativity require recognition of the need and opportunity to act, which cannot exist in a litigation practice without the supporting foundation of disciplined planning and organization.
It is true that in order to become organized and enjoy the benefits of doing so, some work is required, but the results are far, far superior to what one obtains without those efforts. A significant improvement in results is what accounts for the difference between winning and losing cases, as well as the difference between being an average “drone” or a superb lawyer. In this firm, it is what accounts for the difference between being part of an elite team and being invited to seek employment in a less demanding, lower performance environment. Thus, depending upon your current attitudes on this subject (which do require honest self-evaluation to spot and understand), you may need to recognize and disabuse yourself of the potential misconception that you can succeed in this firm without adhering to our detailed case management procedures.
Rather than consistently applying a defined workflow management process, many lawyers prefer to “chisel away, a step at a time” at their work, or “handle things as they come up.” This approach is akin to hiking across the Rockies without a map, compass or plan of any kind. “I’ll trust my instincts and find my way as I go” is the mantra that has gotten more amateur hikers killed than the Forest Service can count. Hiking in the wilderness takes planning, experience and proper equipment. Practicing law in a firm such as ours requires an even higher degree of professionalism, planning and discipline, for it is fundamentally more complex than cross-country hiking.
An attitude of professionalism, including planning, organization and discipline required, is part of life for top professionals in many fields. The world’s top surgeons plan every step of a procedure, rehearsing carefully before performing complex surgeries, with every piece of equipment and every interval of time accounted for. Top pilots plan every aspect of a flight, including many possible alternatives and emergencies. Elite special forces soldiers do the same. The most successful technology corporations employ extremely disciplined and detailed processes in the development of cutting-edge hardware and software.
In this light, it is silly to think that a top-flight litigator can handle a caseload without faithful adherence to a carefully developed system. If you approach your career as though you were out for a stroll, seeking a casual, relaxed environment in which to entertain and feed yourself by dabbling in the law, you should run for the nearest exit, for you are a danger to yourself, your firm and your clients. Lawyers who resist a highly structured approach to managing a caseload might occasionally be able to succeed in sole practice or a different kind of firm, but they are simply unsuitable for employment with us.
2. Rejection of authority and regulation: A substantial portion of the human race reacts badly to being told what to do or how to do it. Ironically, many such individuals pursue a career in the law because they thought that they could be in charge of their practices and thus escape the constricting effect of being told what to do. The perception that law practice is a means of gaining greater individual freedom is in direct conflict with the reality of life as a top-flight litigator. At the top of this profession, a lawyer has more people telling him or her what to do than you might imagine. Courts, clients, rule books, statutes, colleagues, firm rules and countless other sources of regulation demand an attorney’s total and complete compliance, and his or her success is measured by the results he or she obtains while complying with all of these dictates. If this seems somehow unfair or troublesome, then know this: it is very fair, for it applies to all of us, and it is no more troublesome than the fact that it takes hard work to get to the top in any profession.
3. Resistance to change: This last barrier is the one that causes the most difficulty with more seasoned litigators. We are all creatures of habit to a greater or lesser extent. We all enjoy the predictability of an established routine, even when that routine isclearly not the most efficient way of doing things.We have observed workers who would rather use an inefficient work-around for a technical problem hundreds or thousands of times in a row rather than to stop their workflow long enough to install and become familiar with a much faster way of doing things. A good example of this is found in the way people set up their computers. They would rather keep pounding away with the same old sequence of laborious steps than take the time to learn how to use a script of macro to automate functions. Illogical as it seems, we run into this phenomenon quite often.
We deal with such a response by insisting that it not get in the way of an employee’s efficiency. We force the employee to use better methods, while reassuring the employee that one day they will thank us. Unless their pride gets in their way, they usually do. Sometimes this opens the door to a new way of thinking for such a person. We’ve had some employees who, once they discovered the empowering nature of the ability to change, adapt and learn new habits, are constantly looking for ways to improve their efficiency and effectiveness and that of the Firm. What a wonderful thing that is to observe in a co-worker!