Litigators live uncertain lives. The current matter could settle or go to trial. Your previous clients may never litigate again. It’s feast or famine.
This uncertainty is projected onto clients. The Jackson reforms insist that litigators set out budgets, but they are a guess. An educated guess, but still guesses that litigators would not share with clients if the law didn’t demand it.
Is this pervading uncertainty warranted? Isn’t it just an excuse for poor planning?
My first career was in the Army. Imagine the Prime Minister getting a briefing from the Ministry of defence:
PM: So what’s the plan?
MOD: Well, we intend to win
PM: How long will it take?
MOD: We don’t know, but we can tell you that the cost of keeping an Army in the field is £1.75m per day, plus disbursements.
PM: So what happens next?
MOD: Well a lot depends on the other side. But we’ll keep you informed via a comprehensive narrative alongside the invoice…
An unfair comparison? Possibly. But if you are trading on your expertise, the ability to predict what will happen – and manage it – is the core demonstration to the client that you are good lawyers. Good project management is misunderstood. It is not about efficient back-office processes for effective e-disclosure. It is about engaging with the client in a way that demonstrates commerciality and enables the client to retain control. It enables the client to make decisions based on a variety of possible outcomes, based on a structured world-view
For litigators the challenge is that the litigation process is a series of pre-determined steps, the outcome of which changes the input into next one. This concatenation (and I’ve been waiting for years to use that word in a blog!) means that the final end point is genuinely unknowable from the beginning.
This conundrum is not, however, unique to litigators. War is similarly unpredictable. To overcome this uncertainty requires bite-sized thinking. The rule of thumb is: ‘the greater the uncertainty the greater the number of phases a project must be broken up into’. A phase is defined as the work done between formal ‘sign-offs’ by the client project board.
Thus a typical piece of litigation is a series of concatenated phases. Disclosure could be one phase, or many phases. Each phase will have its own plan/do/check/review cycle, and each phases’ outcome will inform the next one. In some cases phases may run in parallel, but the client will receive clear and helpful (standard) communication so that they are clear as to what’s happening, and the decisions they can make to control the process.
As phases unfold the final costs will become more evident.
The classic IT ‘cone of uncertainty‘ (pictured below) suggests that the possible costs at the beginning vary from .25x (the letter before action works?) through to 4x (full trial?) – a 16 fold spread. With tight phases each phase becomes its own cone, so that costs and outcomes are tightly and clearly defined.
Good project management for the litigator is more than a set of tools and a spreadsheet. It’s a change of mindset which enables the lawyer to see the world from the client’s viewpoint, and requires the lawyer to give the client the information to make decisions, and equally importantly enable the general counsel to show their board of directors that they are doing a good job.
Litigation is uncertain and complex. Your job is to make it less so, and litigation project management helps.
Jamie Pennington’s consultancy, Pennington Hennessy, provides mentoring, coaching and training to law firms. You can read his blog here.